The statutory prohibition against ritual slaughter, which does not
stun the animal prior to slaughter, as required in most Western nations,
poses a significant challenge for the international right to freedom of
religion or belief in European nation-states. 2 This prohibition is
important not only in Europe, or because of the prohibition itself, but
because it implicates the legal status of two minority religious
communities in these nation-states, those of Judaism and Islam. Some
animal rights advocates have objected to ritual slaughter without
stunning because, in their view, it causes needless suffering by the
animal,3 and they have been successful in getting their views enacted
into law in a number of European countries. Indeed, some countries
prohibit ritual slaughtering altogether, as we shall discuss below.
This paper argues that the right to freedom of religion or belief
requires nation-states to respect the rights of religious minorities that
engage in ritual slaughter, even if they recognize the importance of
avoiding unnecessary suffering4 of animals. Following a review of the
legal status of animals in rights discourse generally, we will show why
the prohibition of ritual slaughter needlessly results in discrimination
against religious minorities, and why it is important that nation-states
attempting to reduce animal suffering more clearly specify realistic
alternatives for avoiding such suffering that are compatible with current
religious mandates about animal slaughter. We will also consider
whether the alternative of importing kosher or halal meat in place of
ritual slaughtering, proposed by some nation-states as a method of
alleviating the harm to religious minorities, is an effective and fair
alternative.

I. THE CONCERN ABOUT ANIMALS
Since the usual claim raised by animal rights advocates against
ritual slaughtering is that it is cruel to animals, it is worthwhile to
begin
our discussion with a brief examination of the historical development of
the concepts of cruelty and animal welfare, including the major religious
traditions’ views5 that influence the Western approach to the status of
animals. We want to distinguish the question of slaughtering per se
from the legitimate concerns that have been raised about the
development of farm factories and related slaughtering practices. We
will show that, while the Western traditions have traditionally viewed
human beings as having dominion over creation, that view has been
accompanied by a consistent demand for ethical treatment of animals, a
view which does support claims against many farm factory practices and
has also informed religious slaughtering practices as described in the
next section.

A. Historical Philosophical and Religious Views about the Ethical
Treatment of Animals

Concerns about animal welfare are certainly not new, nor unique to
the Western tradition. In ancient Greece, we find some advocates of
vegetarianism, 6 although Greek philosophy, and perhaps its most
prominent representative Aristotle, did not devote too much
philosophical attention to questions of the ethical treatment of animals.7
The same might be said of Roman philosophy, which rarely considered
what human communities owe animals.8
Jewish attitudes toward animals are based on Biblical texts. The
Scripture says that the Almighty bestowed on human beings the right to
control animals, according to Genesis, where it is written that human
beings shall “have dominion over the fish of the sea and over the fowl in
the air and over every living thing that creepeth upon the earth.” 9
According to Jewish tradition, however, at the time of creation, man was
only permitted to eat fruit. In the Biblical test, God said:
Behold, I have given you every herb yielding seed which is upon
the face of all the earth, and every tree in which is the fruit of a
tree yielding seed—to you it shall be for food; and to every beast
of the earth . . . .10
Rashi explains the phrase: “to you it shall be for food; and to every beast
of the earth” to mean that the Scriptures regarded man and beasts as
equals who were both to subsist on herbs and vegetables and that God
did not permit Adam and his wife to kill any creature to eat its meat.11
However, by the time of the children of Noah, the text shows that God
permitted human beings to eat meat: “Every moving thing that liveth
shall be food for you, as the green herb have I given you all things.”12 In
Rashi’s exegesis, God’s permission to mankind to eat meat was given
only after the Deluge; he explained that this text is God’s announcement
that everything . . . “shall be food for you—I did not permit Adam to eat
meat but only herbs and vegetables, but as for you (i.e., Noah) . . . I let
you have everything.”13

Even though the Jewish Scriptures regard animals from an
anthropocentric viewpoint,14 that does not prevent Judaism from being
compassionate toward them. Jewish precepts drawn from the Biblical
text explicitly forbid cruelty to animals. 15 For example, Exodus
prescribes that animals must not be put to work on the Sabbath. 16
Similarly, Leviticus dictates that “whether it be a cow or ewe, ye shall
not kill it and its young both in one day.”17 Maimonides explains this
text as honoring animal mothers’ relationship with their young:
It is also prohibited to kill an animal with its young on the same
day (Leviticus 22:28), in order that people should be restrained and
prevented from killing the two together in such a manner that the
young is slain in the sight of the mother; for the pain of the
animals under such circumstances is very great. There is no
difference in this case between the pain of man and the pain of
other living beings, since the love and tenderness of the mother for
her young ones is not produced by reasoning, but by imagination,
and this faculty exists not only in man but in most living beings.18
We can see further recognition of human responsibility to avoid needless
suffering to animals. Biblical laws like “Thou shalt not plow with an ox
and ass together”19 and “If a bird’s nest chance before thee in the way, in
a tree or on the ground, with young ones or eggs, and the dam is sitting
on the young ones or upon the eggs, thou shalt not take the dam with the
young”20 are clear examples of Judaism’s attitude toward the humane
treatment of animals.21
Islam also stresses the importance of kindness to animals. Though
it is similarly anthropocentric in its attitude, Islam also advocates the
protection of animals and restrains man from being cruel to them. There
are numerous passages in the Qur’an urging Muslims to take an interest
in the welfare of nature and particularly animals, implying that all
created life is important to Allah.22 By contrast, at least early Christian
attitudes toward the fate of animals are not so clear.23 It is true that we
find notable exceptions such as Francis of Assisi (1181-1226), who
showed a strong empathy toward animals. Yet, while generally there are
few, if any, references to animal rights in early Christian doctrines, the
texts show that many Christian writers also objected to the abuse of
animals.24 For example, Thomas of Aquinas (1225-74) writes that he
does not doubt the right of man to exploit animals for his own use, but
states that he opposes cruelty toward animals in order to prevent man
from becoming brutal to his fellows.25 Perhaps because the three most
important religions in the Western tradition adopted this anthropocentric
concept, it has become part of the general tradition in Western
philosophy. And, while the Renaissance and humanism brought a new
vision to our understanding of man, this change fell short of influencing
the philosophical status of animals in any major Western philosophical
traditions through the eighteenth century.

B. The Modern Debate about Humane Treatment of Animals

By the nineteenth century, however, political activists were
changing national attitudes toward the status of animals. Animal
activists spoke out for the prevention of unnecessary suffering of
animals and demanded punishment for their abuse. Legislation was also
passed to protect animals in some Western nations. In England, for
example, starting in 1800 there were several attempts to pass legislation
protecting animals (e.g., forbidding dog-fights and bear-baiting).
Finally, in 1822, the “Horse and Cattle Bill,” the first piece of
legislation
specifically intended to prevent cruelty to animals, was introduced.26
Gradually, most Western-influenced countries passed laws protecting
animals in various ways, outlawing cruelty and abuse toward animals,27
regulating scientific experiments 28 and hunting, 29 preventing
abandonment of animals30 and protecting endangered species.31 The
necessity of protecting animals is not seriously questioned in any
modern Western nation-state today, even while its scope still remains
unclear and the legal profile of animals is being defined even in
legislation that does not protect their rights.32
Despite this consensus about the need to ensure a degree of animal
welfare there is unfortunately no consensus about the proper scope of
protection. Those more radical in their defense of animals
(“abolitionists”) debate “legal welfarists,” who strive for the protection
of animals but realize that it is not realistic to avoid at least some use
of
animals in the daily lives of human beings. Legal welfarists argue that
the struggle for animal protection should focus on regulating human
activities utilizing animals to diminish the number of animals involved
and the magnitude of their suffering. Abolitionists respond that legal
welfarism falls short of affording acceptable solutions, particularly on
the context of “farm factories,” which are important in the slaughtering
industry.

C. Setting Aside the Question of Farm Factory Practices

It is important to distinguish the debate about ritual slaughtering
from the question of modern farm factory practices, which do raise
legitimate concerns about the humane treatment of animals. The
problems created by industrial animal husbandry are diverse and include
issues about the humane feeding and transportation of animals as well as
the ways in which animals are killed. All farm animals are bred to be
killed for food (or similar human uses) and unlike other domesticated
animals, their owners’ emotional involvement or sentiments play no role
in their fate.
In previous generations, the attention paid to farm animals did not
stem from any concern for their welfare but from practical concerns
such as ensuring sanitary conditions for public health, 33 economic
standards for producing meat and other products, proper business
practices, consumer protection, etc.34 The gradual move from traditional
farming to industrial husbandry has aggravated the suffering of animals
because economic expectations have resulted in crowded environments
and poor living conditions for these animals. It is from these
developments that the struggle against abuses was largely born.35 In this
context, it is almost superfluous to cite Singer’s best known book,
Animal Liberation,36 a clear manifesto against industrial husbandry. In
pointing out the ethical problems in the raising of animals for food in a
modern industrial farm setting,37 Singer notes his clear opposition to any
animal breeding, concluding that only vegetarianism can provide a
solution for the inhumane treatment of animals.
An important phase in the development of Western law on the
treatment of agricultural animals, which is relevant to farm factory
abuses, is marked by The Brambell Report (U.K. 1965), which
recommended certain principles to serve as a basis for European
legislation.38 Ever since this report came out, the concept known as
animal welfare has gained more public acceptance. Those who debate
these issues are generally agreed that it is not enough to prevent singular
instances of abuse but that the aim of public legislation should be to
establish decent conditions for all farm animals.39
In Europe the practice of raising farm animals has in recent times
been regulated by the European Convention for the Protection of
Animals Kept for Farming Purposes.40 Though the Convention was not
adopted by the European Community, but rather by the European
Council, its regulations were adopted by the Community in Directive
78/923. 41 Despite the dissatisfaction of animal welfare lobbies that
believe that little has been done for farm animals, this directive
demonstrates that Europe has taken a positive step toward meeting the
demands for better conditions.
On the other hand, U.S. law is more limited in protecting farm
animals. Farm animals are not protected by the Animal Welfare Act42
and there is no unified national policy on animal welfare due to, among
other things, the opposition of the agricultural lobbies in the U.S.43
We have to approach the problem of kosher slaughtering with some
care in light of these discussions about industrial husbandry because
while the “suffering”44 imposed by slaughtering is the same as when
slaughtering is done privately45 or in the context of traditional farming,
kosher slaughtering does not entail these more universally denounced,
and less religiously controversial, practices involving keeping, raising or
transportation46 of animals. Despite the firm commitment to animal
welfare of countries such as Switzerland, which bans ritual slaughter,
and the importance of limiting animal abuse in industrial settings, the
discourse on ritual slaughtering needs to be clearly distinguished from
the debates about the farm factory because of the very different interests
it entails. In order to underscore that the basic principles of humane
treatment in the raising and slaughtering of animals are shared by those
engaged in religious slaughtering and legal welfarists, it is important to
understand the basics of Jewish and Muslim law regarding slaughtering,
a question to which we will now turn.

II. RELIGIOUS (KOSHER AND HALAL) SLAUGHTERING

Modern attempts to regulate ritual slaughtering of farm animals
vary in their understanding of what is entailed in ritual slaughtering.
After describing these rituals in Judaism and Islam, we will catalogue
the various statutory approaches that European states, as well as the U.S.
have taken toward regulation of ritual slaughtering, and discuss in some
depth a recent Italian Commission report on this question which
demonstrates more understanding and sensitivity to the conflicting rights
involved than most national legislative debate about the question.
A. Jewish and Muslim Law Regarding Slaughtering
We define religious or ritual slaughter as a procedure carried out
according to rules originating from ancient religious laws. 47 The
religious nature of slaughtering48 relates primarily to Jewish and Muslim
slaughter, and as was indicated earlier, kosher and halal slaughtering are
done without stunning. The relevant precept originates from Scriptures:
If the place which the Lord thy God shall choose to put His name
there be too far from thee, then thou shalt kill of thy herd and of
thy flock, which the Lord hath given thee, as I have commanded
thee, and thou shalt eat within thy gates, after all the desire of thy
soul.49

As a matter of fact, Scriptures do not give details of the technique of
slaughtering—rather, they are expounded by Oral Law.50
According to the Halakhah, the killing of an animal for purposes of
eating its meat must be performed by an expert 51 who severs the
animal’s gullet and wind-pipe with one slash, after making sure that the
knife is sharpened according to halakhic specifications.52 Maimonides
regards these specifications of slaughtering as proof that the law calls for
a painless and easy death for the animal.53
[F]or as it has become necessary to eat the flesh of animals, it was
intended by the above regulations to ensure an easy death and to
effect it by suitable means; whilst decapitation requires a sword or
a similar instrument, the shechita can be performed with any
instrument; and in order to ensure an easy death our Sages insisted
that the knife should be well sharpened. [. . .] Since, therefore, the
desire of procuring good food necessitates the slaying of animals,
the Law enjoins that the death of the animal should be the easiest.
It is not allowed to torment the animal by cutting the throat in a
clumsy manner, by pole-axing, or by cutting off a limb whilst the
animal is alive.54
of slaughter among the positive commandments:
[T]he 146th precept is that we were commanded to slaughter cattle game or
fowl before
partaking from their meat, which is not permitted except by the proper
method of
slaughter. And the Exalted One said “and thou shalt kill of thy herd and of
thy flock . . .
as I have commanded thee.” The Midrash explains that the term used for
slaughter is
identical to that of the sacrificial procedures. This teaches us that the
gullet and windpipe
must be severed for animals and at least one of them for fowl. The details
of this
precept are explained in the Talmud in its designated Tractate—Chulin.
Moses Maimonides, The Book of Precepts Positive Precept # 146 (Robert Young
1849). See I.M.
Levinger, Meor le-Masekhet Hulin (Guide to Masechet Chulim), vol. 1, 1 (Yerushalayim
1994).

Although these texts emanate from a time when stunning was not
universally practiced, they show a clear animal-welfare oriented
approach in Jewish thinking regarding slaughtering.
For Muslims,55 there are four sources of Muslim law concerning
halal (permissible meat): the Qur’an, the hadith, 56 the sunnah57 and
fiqh.58 Islamic rules for slaughtering resemble the Jewish approach in
many respects, while differing in others. Apart from the obvious
differences in the prescribed prayers (the Hebrew benediction and the
Arabic ‘bismillah Allahua akbar), there is no requirement that the
Muslim slaughterer should be a trained expert. According to some
opinions, Muslim law is not as strict with regard to the prohibition of
prior stunning as Jewish law. While according to Jewish law stunning
may impair the perfection of the animal and not allow the consumer to
discern whether it is trepha,59 there are those who claim that the position
adopted by Muslim law is a bit different. For example, it is possible to
find fatwa accepting stunning since it is enough that the animal remains
alive. 60 The fatwa of the Mufti of Dheli in 1935 stated that it is
permissible in ritual slaughtering to stun the animal as long as the animal
does not die during the process.61 A similar view was exposed by the
Rector of the Al-Azhar University of Cairo in 1982.62 Furthermore,
certain authorities maintain that Muslim law permits partaking of nonhalal
meat when halal meat is not available.63 But these opinions are, to
a certain extent, controversial and there are those who rely on these
decisions as applicable only to Muslims living in countries where there
is no freedom of religion for them.64
Either way, any framework for the protection of religious beliefs
and practices should not be sought in the “correct” interpretation of the
religious text, especially where there is controversy. Theological
arguments trying to adopt a narrow or broad interpretation afford no real
solution to this problem; the concern of this article is rather to explain
why a ban on this practice may be seen by Muslims or Jews as being at
odds with their faith.65

1. Some countries permit slaughter under regulations which
include stunning, but also to enable religious communities, i.e., Jews and
Muslims, to slaughter according to their religious specifications. This
approach of adapting the law to the special needs of minority groups is
quite commonly adopted as the most suitable way to keep the balance
between religious freedom and protecting animals,66 as seen in Western
countries such as France, 67 Italy, 68 Spain, 69 England, 70 Scotland, 71
Germany,72 Netherlands,73 Finland74 and Denmark.75 This policy was
adopted as the European standard in the Convention for the Protection of
Animals for Slaughter in 197976 and the Directive 93/119 of 1993—
Protection of Animals at the Time of Slaughter or Killing, 77 which
defines stunning as the proper method of killing animals with the
exception of religious slaughter.78 In the U.S., the Humane Methods of
Slaughtering Act, 79 made stunning compulsory 80 but recognized
religious slaughtering as “humane.”81 In fact, U.S. law uses the method
of kosher slaughtering as a model for religious slaughter, and other
religions using a similar method are permitted to engage in ritual
slaughter.82
However, it should be noted that legislative permission to engage
in ritual slaughtering does not mean that religious slaughtering officials
are free of official supervision.83 For example, in England, religious
slaughtering must take place in licensed premises under veterinary
supervision84 and in the presence of a stunner for emergencies.85 Danish
law has similar requirements.86
Second, religious slaughter is not the only exception to the standard
slaughtering regulations. Italy, for example, permits slaughterers to
forego stunning where the slaughtering is done for the family (and not in
commercial slaughterhouse), and also when fowl are slaughtered,
enshrining a distinction between large animals such as cows and small
fowl.87

2. Many countries outside Europe, some of which have tribal
customs, take a broader view of ritual slaughter. For example, while
Filipino law deals with the protection of animals, it permits animal
sacrifice for religious ends completely unconnected with consumption.
The law permits the killing of animals “as part of the religious ritual of
an established religion or sect or a ritual required by tribal or ethnic
custom of indigenous cultural communities.” 88 In America, several
states also allow traditional slaughtering.89

3. A third category, which we will focus upon in this paper,
consists of countries that altogether prohibit ritual slaughter not carried
out according to regulations (stunning or electric shock and so on).
Currently, Switzerland and Sweden, which both lay great stress on the
welfare of farm animals, along with Norway, Liechtenstein and Iceland,
prohibit ritual slaughtering.90 These national laws are influenced by
nineteenth century objections to ritual slaughter, presumably directed
toward Jewish slaughter, on the basis that such slaugther caused
unreasonable pain to animals. As early as 1855, the British RSPCA
tried to bring about the prohibition of Jewish slaughtering because it was
not “humane,” 91 although there was hardly any evidence that ritual
slaughtering was more cruel than other methods. In Switzerland, it has
been forbidden by law since 1893 following a referendum. 92 Even
today, in Switzerland there are voices that want to strengthen the
prohibition by forbidding imported kosher meat, while others in
countries where the prohibition is in force are urging acceptance of ritual
slaughtering.93 In Sweden, the prohibition dates from 1937, and in 1988
it became an integral part of the law for the protection of animals.94 In
Norway, the prohibition dates from 1929.95 From time to time, other
proposals have surfaced to restrict or limit the ritual slaughtering in
other countries,96 but it is unclear whether these countries will join those
that completely prohibit ritual slaughtering, especially given European
calls for a new debate on the need to restrict or prohibit kosher
slaughtering to prevent animal cruelty.97 Given these new calls for
action, which extend even outside of Europe, a discussion of the opinion
of an Italian commission called to consider the question is worth
pondering at some length.

C. The Italian Report on Ritual Slaughtering

On September 19, 2003 the Italian Comitato Nazionale per la
Bioetica (National Commission on Bioethics) published a document
entitled Macellazioni Rituali e Sofferenza (Ritual Slaughter and
Suffering), a report which is especially worth considering since it
reflects current trends in European discussion of this topic. 98 Italy
permits ritual slaughter, and perhaps for this reason, the approach of the
Comission is more tolerant toward religious slaughtering than the
opinion of the Swiss Institute of Comparative Law, which tries to find
justifications for the prohibition.99

The Italian Commission points out that it has already considered
the issue of animal rights in the past, and that it recognizes the
superiority of man which, to a certain extent, justifies the subordinate
position of animals to humans. In the words of the report, however, this
position implies “responsibility [on the part of mankind] and does not
justify acts of cruelty to animals.” 100 In the light of these basic
assumptions, the Commission believes that the primacy of human beings
in the created order leads to the conclusion that Jewish and Muslim
slaughter is “an expression of the freedom of religion, a basic value of
human life.” In the Commission’s view, the principle of responsibility
requires human communities to try to minimize or completely abolish
animal suffering as far as it affects all forms of pole-axing or
slaughtering.
The Commission emphasizes that there is a dialectical difference
between “the respect for certain universal values and the proper
consideration for the uniqueness of each individual culture.”101 In the
Commission’s view, this consideration prevents a nation-state from
rejecting a custom which is deeply rooted in the culture and tradition of
a community simply because it is different from that of another religious
or secular sector of the population, even though that may be the
majority. If there is no specific justification for imposing an injury on a
minority religious group, each state should prefer the dignity of the
other, which can only contribute to social integration, “an integration
which is understood as respect for the religious and cultural traditions of
the community as long as they accord with the basic principles which
promote a harmonious social life.”102
The Commission briefly describes shechita, stressing the fact that it
must be carried out by an expert and that the animal must be in perfect
condition, i.e., not ritually unfit. It underscores that there is a reason
for
the prohibition of stunning: neither Judaism nor Islam accepts stunning
before slaughter as legitimate, since it impairs the perfection of the
animal.103 The ethical aspect of these religious proscriptions is also
considered in the report, which explains that the aim of shechita as a
religious act is to remind mankind that it is not at liberty to make use of
animals arbitrarily and that their exploitation is restricted by Divine
ordinance. The report similarly notes the significant detail with which
the Halakhah specifies the quality of the knife to be used for ritual
slaughter, with the aim of minimizing the suffering of a living creature.
The express desire in Halakhic sources to make death as instantaneous
as possible is an additional factor that leads the Commission to
recommend protecting ritual slaughtering methods. In particular, the
report notes, the Christian world ought to stress that freedom of religion
is expressed not only by ritual but also in behaviors and actions that the
faithful believe to be obligatory. Shechita certainly takes its place
among such actions, as it is recognized by the decision of the
constitutional court of the Federal German Republic.104
The Italian Commission determines that shechita does not
adversely affect the basic principles of legislation attempting to protect
human treatment of animals so long as there is no proof that the
suffering caused to animals when ritual slaughter is used is no greater
than animal slaughtering methods permitted by law. Because, in the
Commission’s view, there are no currently reliable means to determine
which slaughtering methods result in what amounts of suffering by
animals, it is impossible for nation-states to make unequivocal
statements on these matters. While there is an assumption that stunning
before pole-axing or schechita causes less suffering than slaughter
without stunning, a minority of authorities reject that assumption.
Ethically, the Commission notes, all animal suffering, great or small, is
significant; but by taking a balanced view, governments considering this
issue can assign the proper importance to the freedom of religion and
permit kosher shechita under the appropriate supervision. This debate
does not, in the Commission’s view, implicate the concerns of
vegetarians since they are against all killing of animals; rather, the
important question is the nature of religious freedom as applied to the
question of animal slaughter.
While it is difficult to predict how Europeans will react to the
Italian Commissions’ report, it is a reasoned illustration of the fact that
it
is difficult to adopt a clear-cut position against ritual slaughter unless
nation-states are prepared to put the protection of rights of animals on a
higher plane that the right of human beings to freedom of religion. In
the next section, we will attempt to illustrate the hazards involved in
balancing the rights of animals with the right of religious freedom.

III. ANIMAL RIGHTS, RELIGIOUS FREEDOM AND DISCRIMINATION

The crucial problem embedded in the prohibition of ritual slaughter
is that it clearly restricts the freedom of religion. From a broad
perspective, the permission of ritual slaughter does not apply only to
Jews or Muslims, and the problem is not limited only to practitioners of
ritual slaughtering. 105 Rather, this controversy implicates the basic
principles defining the boundaries of religious freedom within modern
society. We will show that ritual slaughtering is clearly religious
expression as understood in the international human rights documents,
and then briefly consider whether an exemption for religious
slaughtering would violate the basic principle in most secular nations
against the intermingling of church and state.
Even conceding the importance of ritual slaughtering of religious
expression, however, we must respond to the legal reality that religious
freedom rights are not absolute and can be qualified where there is a
strong enough state interest.106 The debate over the prohibition against
the use of religious symbols in French public schools, such as the hijab
for Muslim girls, only goes to show that the fundamental principles of a
particular society (in this case, the principle of laicité that shapes the
secular character of France) are able to outweigh the principles of
freedom of religion.107 We will argue that the prohibition of ritual
shechita, ostensibly to protect animals from unnecessary suffering
cannot be isolated from the issues raised when slaughtering rules restrict
the freedom of religion of a minority group.
In the next section, we will show why recognition of this right is
very important in a religiously pluralistic nation-state. This, in turn,
will
lead us to consider the deeper philosophical question, debated even
among those engaging in ritual slaughter, about the nature of suffering in
slaughtering and the distinction between necessary and unnecessary
suffering that drives these debates.

A. Ritual Slaughtering as Religious Expression

Freedom of religion is accepted as a basic right in all European
constitutions108 and has been recognized in international conventions,
such as the International Convention on Human Rights (sec. 18) and the
International Covenant on Civil and Political Rights (1966) (sec. 27).109
The European Convention on Human Rights110 states in Section 9 (1):
Everyone has the right to freedom of thought, conscience and
religion; this right includes . . . freedom, either alone or in
community with others and in public or in private, to manifest his
religion or belief, in worship, teaching, practice and
observance . . . .
Clearly, the international conventions embrace more than the right
to belief, but also include the right “to manifest [one’s] religion or
belief.”111 Indeed, Section 9 (2) of the European Convention, makes
clear that:
Freedom to manifest one’s religion or beliefs should be subject
only to such limitations as are prescribed by law and are necessary
in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of
the rights and freedom of others.
Just as clearly, the practice of kosher schechita falls within the
compass of the right to manifest belief, and thus, if a nation-state is
going to abide by these covenants, it is not acceptable to prohibit kosher
shechita.112 To maintain, as some animal rights advocates have done,
that the prohibition does not impinge on the freedom of religion because
it does not restrict the consumption of meat but only its slaughter
misunderstands the complexity of the problem. The “religious issue”
involved is not in the eating of kosher meat,113 but the actual freedom to
perform shechita since shechita is not simply a way to provide permitted
food but a manifestation of a religious belief and a way of life.114
In making an argument that the right to ritual slaughter must carry
the most weight, one might try to pre-empt any argument by observing
that in most countries, animal rights are not recognized while freedom of
religion is. Hence, on a universal constitutional level, religious freedom
currently is preferred over the prevention of cruelty to animals.
However, there is a growing national trend, not yet very marked, to
recognize the constitutional protection of animals, with one recent
expression of that right in Germany. 115 Reliance on constitutional
arguments to justify ritual slaughtering may be considered too
formalistic, 116 and those who strongly advocate for the defense of
animals are not easily convinced by such positivist arguments. Thus, we
will consider whether arguments beyond these positivist arguments are
valid.

B. Does a Religious Slaughtering Exemption Threaten the Separation
of Church and State?

If we were to catalogue the arguments against permitting an
exemption for ritual slaughter, the most common argument against
religious exemptions—that neutral laws are necessary to ensure the
secular nature of the state—does not seem apposite in the case of ritual
slaughter. No current advocates of a ritual slaughter ban claim that
prohibition of ritual slaughter is necessary to preserve the secular
character of society or to ensure the separation of state from religion.
Indeed, there seems to be no correlation between secularism and
religious slaughter prohibitions: a number of countries that are
historically fiercely secular and separate religion from state (U.S. and
France, for example) are permissive with regard to ritual slaughtering,117
while other countries such as Sweden, where formal separation between
Church and State was accomplished only a few years ago, completely
prohibit ritual slaughtering.
However, if we were to consider the question of ritual slaughter
from a separationist perspective, the most logical conclusion we might
draw is that separation would entail non-interference by the state into
religious practices such as ritual slaughter. Moreover, when
secularization affects only minorities within the society, particularly
when those minorities have little chance of gaining political ascendancy,
we must recognize that the ritual slaughter ban does nothing by way of
separating church and state, but rather has the sole effect of restricting
the basic freedoms of the minorities. Because the acceptance of a fully
secularized society which allows no exception for religious difference
can easily lead to the negation of pluralism and become a means for
minority persecution, the question of why and to what extent the
restriction is justified must be explored.
Part of the problem in understanding the ritual slaughter ban is that
it rests upon unreflective majoritarian assumptions about the nature of
the act of providing food to the community by slaughtering animals.
Since shechita is in no way a religious issue for Christianity, the
dominant religion in Europe, many Christians may find it hard to
comprehend that the Jewish and Muslim view of shechita is
fundamentally different, that it plays such an important part of their
religious life.

C. Does Ritual Slaughtering Invade the Rights of Animals?

One way to approach the problem of ritual slaughtering is to
describe it as a conflict between two rights-holders, the religious
individuals and the animals that are being slaughtered. If we pay careful
attention to the language of the European Convention on rights, we
ought to ask who, then, are these “others,” whose rights and freedoms
should be protected, and whether animals are included among these
“others.”118 This requires us to answer a basic question—is it possible at
all to talk about “the rights of animals”? While it is not our intention to
adopt a position about the question whether animals can be considered
holders of rights at all, and a deep analysis of the philosophical issues
involved is beyond the scope of this paper, it is necessary to advance
some remarks on the topic, since it is not possible to see the guidelines
of this debate without them. Yet, as we will show, we do not think that
the determination that animals are rights-holders ultimately contributes
to the solution of the problem of ritual slaughtering.
The debate over whether animals may be rights-holders is nothing
new. We might begin with Descartes (1596-1650), who held the
absolute view that animals had no rights whatsoever, and compared
animals to machines (automates) without emotions. 119 In his view,
animals were incapable of suffering in the human sense, or, in any case,
they had no consciousness of suffering, because they had nothing but
reflexes.120 Descartes’ position has been repeatedly assailed and today
no one can seriously support it.121 A more balanced view, which takes
into consideration the need to have compassion for animals, is expressed
by Kant, who recognizes that human beings have obligations toward
animals, but no direct duties. In his view, animals have no selfawareness,
and they are not regarded as an end in themselves but as
means for the purposes of man.122
During the nineteenth century, Bentham took into consideration the
suffering of animals123 but did not consider them holders of any rights.
It is during the twentieth century that we see a more radical
philosophical trend that is not content with the protection of animals
(legal welfarism), but proposes to recognize a special rights-bearing
status for animals. We note the views of two leaders of the intellectual
movement supporting the cause of animal welfare, Peter Singer, who
argues that utilitarianism requires taking into consideration the interests
of animals, 124 for “otherwise we fall into speciesism,” 125 and Tom
Regan, the most prominent advocate of what we might call “the doctrine
of rights.” 126 According to Regan, both human and non-human
“subjects-of-a-life” have a basic moral right to respectful treatment, have
inherent value, and thus enjoy an equal moral status.127 Accordingly, in
his view, animals should be considered to have inherent rights. Still
other scholars advocate against any exploitation of animals,128 though
they derive their opposition to abuse of animals from different
theoretical groundings.129
On the other side, there are many philosophers who deny the
concept of animal rights arguing that in order to have rights, one must
belong to “the same moral community” as those who have the authority
and power to recognize rights, and only those belonging the same
community are entitled to rights. In this view, since animals do not
belong to the human moral community, they do not have rights.130 Still
others, particularly those who hold the “choice theory of rights,” believe
that in order to have rights, an entity must have the capability of
conscious choice between options for action and intentionally implement
this choice. For them, an animal cannot choose; therefore, it has no
rights.131
There are many potential inconsistencies in the arguments of those
who deny a special status to animals, as well as those who want to treat
them as equal to human beings in terms of rights. For example, those
who claim that one who has rights must be able to implement them
cannot fully account for the fact that many human beings (babies, the
mentally handicapped, etc.) cannot themselves make a legal appeal for
their rights and yet most societies would hold that they still have rights.
On the other hand, the recognition that some human beings not capable
of conscious choice or of advocating for their rights still have rights does
not require that a dog or a cat must always be treated under the law as a
baby or as the mentally handicapped. The granting of rights to animals
does not entail the conclusion that they have the same rights as
humans132 or suggest that their rights are more absolute than human
rights.133 To make a facile equation between the two is tantamount to
anthropomorphism134 an approach that surely should be avoided.135
Notwithstanding the difficulty in assessing the moral rights of
animals, and even assuming that they have no natural rights similar to
human beings, there are cases where the law seems to recognize that
animals have a certain sort of rights. In our view, however, this
recognition in positive law cannot contribute very much to finding a
clear framework for defining the status of animals. A positive law
approach creates even more theoretical difficulties because to say that an
animal has only those rights recognized by positive law leaves room to
question whether there are animal rights not yet recognized by law. This
approach leads to cumbersome discussions involving distinctions
between “natural rights” and “positive rights,”136 and will add nothing to
the effective protection of the animals. Such debates simply divert us
from finding the criteria we should use to determine whether certain
animals are owed certain treatment by humans. The protection of
animals should not become a debate about rights. As Dworkin
explained, to talk about having rights is like claiming to have trump
cards that enable rights advocates to control government or individual
action toward them.137
Even if we denied the recognition of animal rights, this does not
mean that human beings would have an unlimited privilege to harm
them or expose them to cruelty. Even if animals have no rights, that
does not entail that we deny our obligations to them.138 For example,
Peter Singer, a utilitarian, is reluctant to use the concept of “rights” to
justify the obligations to defend and protect animals.
Others have argued that the reason we protect animals is not
because they have rights, but because we are protecting feelings of those
humans who suffer from the suffering of animals,139 feelings which, of
course, are shared by Jews and Muslims. However, governments must
take the greatest care in moving from a focus on cruelty to animals to a
focus on protecting the emotions of humans who suffer with them, not
because it is improper to take into account the distress caused to humans
when animals suffer, but because this interest does not always constitute
a sufficient reason to impinge upon human freedom, particularly
religious freedom, and specifically the religious freedom of minorities
who have different views about the religious significance of animal
slaughtering practices.140
Even if there were a good case for comparing religious
considerations to the emotional response of animal advocates, those
advocates must produce very strong reasons indeed to explain why the
feelings of someone who suffers when animals suffer should be
juridically preferred over the right of someone to act according to his
religious beliefs. From the point of view of the secular state, it might be
possible to suggest that religious “feelings” are the same as cultural
sentiments or national traditions, such as bullfighting in Spain.141 Even
if it were possible to equate religious “feelings” to cultural or individual
“feelings,” however, in the ritual slaughtering case we are considering
the majority’s imposition of its religious beliefs and practices on a
minority, rather than, as in Spain, the animal protection minority’s
advocacy to combat the practice against a democratic majority’s
decision to preserve the tradition.142 It is that majority-minority rights
dynamic that is particularly problematical, as we will see.

IV. RITUAL SLAUGHTERING AND MULTICULTURALISM

In a multi-cultural democratic culture, it is very critical that the
religious faith of particular groups is regarded as a valuable expression
of particularism143 that should be respected by the majority. For one
thing, sensitivity to the value of religious particularism will require
religious majorities to come to understand what is involved in ritual
slaughter and to prevent the ritual alsughter problem from being framed
as a clash between the universal value of cruelty to animals and the
particularist views of Jews and Muslims.144 Jews and Muslims, who are
minorities in other societies, also share universal values about the
prevention of cruelty to animals and simply differ with animal rights
advocates about the definition of cruelty and the relationship between
religious obligation and duties owed to animals.

A. The Need for “Legal Accommodation”

Religious slaughtering implicates questions about the definition
and value of healthy pluralism in secular societies. In one view of
pluralistic societies, the so-called cosmopolitan alternative, 145 the
cultural make-up of a society is composed of different components.
National concepts of rights are components or expressions of such a
culture, so that the range of rights and their relevance to social life
depends on the cultural codes which define what is permitted and what
is forbidden.146
In most modern countries, these codes signal democratic leaders to
adopt a system of accommodations to permit the minority to carry out its
religious obligations, such as ritual slaughter, through what is termed the
“rule-and-exception approach.”147 This means that after the majority has
decided upon the appropriate regulation applicable generally to all
persons engaged in the practice (in this case, the requirement of stunning
the animal prior to slaughter), the law provides an exception which
permits the minority to deviate from the ideal practice in order to
recognize the minority’s interests, beliefs or cultural background as long
as the society’s fundamental principles and critical concerns, such as
public order, are not seriously affected. This rule-and-exception system
is part of what might be called the multicultural concept of social life.148
In this system, accommodation is practiced quite extensively, 149
especially in matters of religion.150
Of course, this does not resolve the problem of whether ritual
slaughter should be permitted as “an exception.” Just as one citizen in
such a culture is entitled to support pluralism, freedom of religion and
the need to preserve the primary ways of life that constitute the
minority’s identity, so another may maintain that the prevention of
suffering to animals is one of the prime values of society. Accordingly
there is no reason to permit injurious practices simply because they are
rooted in a minority religion, even conceding generally the
“rule-andexception”
system. We will discuss this issue below.
In the case of religious slaughter, the need for accommodation
stems from the fact that these traditional religious beliefs about the
proper method of slaughtering cannot be harmonized with the
preferences of the majority that require stunning. At this juncture, we
want to re-emphasize that the ritual we are discussing implicates a
minority right, and not just an eating preference. Although it may annoy
animal protectors and vegetarians alike, there is no escaping the fact that
human society exploits animals for many purposes, including food,151
and human utilization of animals for their purposes is accepted as
legitimate, at least in the eyes of the majority of the population152 that
is
not vegetarian. However, let us assume that somewhere the “Vegetarian
Party” wins the elections and as part of a change in the legal regime
favoring animals vegetarianism is defined as an obligatory lifestyle for
all citizens and the slaughter of animals is absolutely forbidden. No one
can deny that this step is good for animals—they would then live in a
society where they do not encounter suffering from slaughter and a
culture that does not kill.153 Yet, while part of the population, those who
are vegetarians and those who are willing to become vegetarian, will
accept this directive, the non-vegetarian minority that lost the elections
will find it unreasonable and unjustified.
To make an analogy to the current situation in countries which
permit animal slaughtering but only using stunning, Jews or Muslims
could say that this prohibition puts upon them a burden like the burden
placed upon meat-eaters in a vegetarian society. They will argue, like
the meat-eaters, that this is a burden that they should not have to bear for
the sake of protection of animals. Concededly, the dilemma about
animal suffering can exist even for the observant Jew who may find that
indeed, ritual slaughtering causes too much suffering to the animal.154
Certainly a Muslim or Jew who must observe the religious
commandments and feels that shechitah causes too much suffering then
has no choice but to become vegetarian.155 However, this choice should
be made freely—indeed, a Jew might argue that this choice is required
to be made freely to be religiously significant—just as no other person in
the society is coerced into vegetarianism.156 In this sense, while eating
meat is not an obligation157 not being forced to be a vegetarian may be
still understood as a right.158 Thus, we do not accept the claim made by
authors such as Barry, that eating kosher is tantamount to choosing meat
of an expensive quality and that it can be foregone by an observant Jew
or Muslim in favor of “lesser quality meat” or that the prohibition does
not hamper freedom of religion but only the ability to eat meat.159
As this analogy suggests, unfortunately, sometimes it seems that
those who oppose ritual slaughtering use their scruples about the
suffering of animals as an excuse not to enter into a dialogue with
religious minorities about the limits of tolerance in liberal and
democratic societies.160 Similarly, we would reject the claim that the
state prohibiting ritual slaughter is only being neutral in that it is
prohibiting every practice that causes suffering to animals, regardless of
whether the motivation is religious, under accepted standards of the
prevention of cruelty to animals. According to the neutrality principle,
in their view, religious slaughter should be forbidden just like
cockfighting
and similar “sports.”161 However, not only does the factual
analogy between religious slaughter and cock-fighting seem to us to be
extreme—and there is good reason to distinguish between Jewish and
Muslim slaughter and sporting rites that kill animals—but the neutrality
principle violates the basic values of multiculturalism that we are
advocating.
Of course, we concede that multiculturalism does not grant a
license for any and all behaviors of religious minorities, and any
particular society is not obliged to accept all the values of other cultures
that contribute to its population. Nor should every religious or mystic
belief be a justification for cruelty to animals. 162 We realize that
multiculturalism debates can quickly deteriorate to cultural relativism,
and we do not mean to suggest the fact that a particular practice is rooted
in religious belief justifies any injury to animals. We do not think that
ritual slaughtering should be justified by an argument from moral
relativism, and do not call for moral anarchy in this particular matter.163
The accommodation of Jews and Muslims may open the gates to all
sorts of considerations regarding traditions and usage. Just as, for
example, the prohibition of whaling is waived for certain aboriginal
peoples in order to conserve their tradition with appropriate limits,164 so
we concede the propriety of limits on ritual slaughter, including the need
to improve animal welfare.
Though we respect those who turn to vegetarianism to avoid
animal suffering, it is important to separate the concern from animal
suffering from other concerns at issue in this case which are unrelated to
the struggle for animal welfare. As we have suggested, given that the
countries we review have not adopted mandatory vegetarianism as the
national standard, the sweeping prohibition of religious slaughter is
problematic both because of its results and also because it is based upon
an unjust distinction based on religion which also is not rational from the
aspect of cruelty to animals. Indeed, we think that the way that the
debate about ritual slaughtering is conducted may lead to a distortion of
the discussion about animal suffering. As we will discuss, the
prohibition on religious slaughter actually adversely affects the principle
of the prevention of cruelty to animals, or more accurately, runs counter
to the need to clearly define the limits of cruelty to animals in two ways.
First, as we will discuss in Part B, the prohibition of religious slaughter
can act as a subterfuge for attempts to harm religious minorities, using
the “banner” of preventing cruelty to animals to justify religious
discrimination. The use of this issue to justify religious discrimination
can create a backlash against the struggle for animal welfare or animal
rights by those who are suspicious that it is being used as a pretext to
cover discriminatory intentions by the majority. As long as the
definition of suffering involved by slaughtering is based on different
considerations than those used in other cases, there is the potential risk
of raising increasing suspicions about the laudable goals of those
struggling for animal welfare (or animal rights). Second, as we will
discuss in Section V, the complete ban on religious slaughter does not
distinguish between religious practices which are actually inhumane and
shechita, which is in fact a form of humane slaughtering.

B. Prohibition of Ritual Slaughtering: Does it Create Discrimination?

With regard to slaughtering, there is currently no way to justify a
realistic abolitionist position since the majority of the public accept the
necessity of killing animals for food. But there is clearly a need to adopt
a regulatory policy, so that slaughterhouses will provide more acceptable
conditions for animals, notwithstanding that, or precisely because, they
are going to be killed. The question is what values and orientations a
regulatory framework should have, and what interests it should prefer.
Animal protection regulations are bound to impinge on the interests of
some sectors of the population, particularly those who will bear the
economic effects of regulation. For example, regulations that specify
how meat must be kept for sale in shops impose expense on shopowners,
which they might consider an illegitimate restriction of their ownership
rights and their freedom of occupation. Similarly, a prohibition against
force-feeding geese that occurs to produce pate of a certain kind and
quality hurts farmers who make a living from the practice.165 But these
restrictions are different from the religious slaughter prohibition,
because they apply to all shopkeepers and all farmers regardless of their
religion or nationality, while the prohibition against religious slaughter
applies only to certain groups with particular religious identities.
Using the ruse that one is attempting to protect an important
value—the prevention of cruelty to animals—in order to attack a
minority is not such a difficult thing to do and even if lawmakers are
well-intentioned, the prohibition of ritual slaughtering will still fall
under a certain degree of suspicion as reflective of anti-Jewish or anti
Muslim sentiment, so we should be cautious before accepting arguments
at face value or conceding them too quickly.

1. Persecuting Minorities and Antisemitism

Any regulatory framework that prohibits ritual slaughtering is
likely to be infected with elements of religious discrimination166 since it
is easy for those who would use the cloak of animal protection for other
ends, such as attacking those whose religious beliefs differ from their
own. One can see such examples in other contexts, such as when a
tenant’s keeping pets is used as an excuse for evicting him because the
landlord does not like him,167 or when a local population objects to a
dam that interferes with the status quo in their community using the
excuse that they are protecting fish that are in danger of extinction.168
Certainly today, instances can be found where those opposing
kosher shechita have a clear anti-Semitic (or anti-Islamic) ideology.
Though this may not be generally true, some opponents of kosher
slaughter tend toward an ideology historically tainted with anti-
Semitism. As we have pointed out before, the decrees against Jewish
ritual slaughter began to be common in the mid-nineteenth century, and
there are those who argue that behind the prohibition in Switzerland169
and Sweden,170 it is possible to discover anti-Semitic motivations.
While there is room to discuss whether anti-Semitic or anti-Muslim
sentiment is behind the growing movement to prohibit ritual slaughter in
Europe, we prefer to avoid this particular discussion and assume that the
prohibition in Switzerland and Sweden were adopted for reasons
unrelated to anti-Seminitism. Indeed, it would be equally problematical
to go to the other extreme and suggest that every attempt to prevent
religious slaughter is an expression of racism or xenophobia. The one
case where it is difficult to deny the anti-semitic motivation of the
prohibition against ritual slaughter is in the case of the Nazis. The direct
connection between anti-shechita legislation and antisemitism was
clearly expressed in the late Dr. Zerach Warhaftig’s article The
Historical and Legal Battle over Jewish Shechita.171 In Germany, a kind
of “scientific antisemitism” evolved which formed the theoretical basis
for the “final solution.” The pretexts and special pleading against
shechita found in the Nazi state have their roots in hatred for Jews and
the Torah and (in Russia particularly) economic jealousy. The concern
for the prevention of cruelty to animals was very selective and did not
apply to killing animals outside the slaughterhouse, for example, to
poleaxing
pigs and to hunting. But it did apply to slaughtering fowl, where
there is no issue of suffering.172
The tragic situation which ensued from the use of the ritual
slaughter prohibition to separate and punish Jews found expression in
the works of many rabbinical authorities at that time. It is well-known
that observant Jews simply went without meat that came from a stunned
animal during the Nazi period.173 Though we cannot explore the full
Halakhic argument, we might cite the words of Rabbi Uziel that
underscore how this demand was used to offend and injure Jews:
It is perfectly clear that the phrase “prevention of cruelty to
animals” is nothing but a pretext to attack the Jews wherever they
live, to make them change their religion or to cause them to
wander from country to country in their Diaspora. If they were
really concerned about preventing cruelty to animals, they would
not constantly insult the whole people of Israel with curses and
mockery, shed their blood and embitter their lives and try to kill
them. There should never be worse cruelty to human beings than
there is to animals at the moment of shechita.174
Similarly, the first volume of the Responsa “Seridei Esh” of Rabbi
J. Weinberg is devoted to the discussion of the Rabbinical authorities on
stunning and their decision to veto it. Rabbi Jehiel Jacob Weinberg175
was one of those people who felt the immense responsibility of being a
rabbinical legal authority during the tragic time of Nazism. His wisdom
and sensitivity led him to reject compromise, but he was very conscious
of his obligation to the sick and to simple Jews who could not always
withstand the terrible trials of the time:
They are simply looking for an excuse to add another insult to the
Torah and another way to oppress our people. The Sages of
blessed memory have unanimously commanded (BT Sanhedrin
74) us that at a time of anti-Jewish decrees by the regime, even
concerning the smallest matter, a Jew should rather give his life
than transgress the Torah. It is superfluous to state that a Jew must
not eat meat (that is not kosher) (Shulhan Arukh YD/157) and he
must do everything in his power not to give in to these evil decrees
and in this way “sanctify the name of God.” The opposite
behavior is considered blasphemy as the Rabbis say, “he who acts
according to the enemy’s laws is like one who raises his hand
against the Torah of Israel.” (Shulhan Arukh HM/26)176
Rabbi Weinberg continues to describe his own personal arduous
struggle with the problem:
I knew from the outset that none of the great men of Lithuania and
Poland and the other outstanding personalities, the leaders of
Orthodox Judaism would ever agree to permit any change in the
time-honored form of shechita, adhered to in Israel for generation
upon generation. As for me, my heart told me not to approach this
serious matter, the very foundation of Jewish life. Many times I
told the righteous teacher, Rabbi Ezra Munk, the Rabbi of the

Adas Yisro’el congregation of Berlin who was also the head of the
shechita board of Germany that we had no right to look for ways
to permit changes in the ancient form.177 The very assertion that
shechita causes suffering to animals is a painful attack on the
honor of the holy Torah, which was the very first to caution
against cruelty to animals. In the end the hatred and cruelty of
these people will become clear to all. They wish to starve Jews to
death with their false, pretended compassion for animals.178
Due to demographic changes in Europe, the debate that once
exclusively affected Jews is now affecting Muslims as well. Muslim
circles are maintaining that behind the attempt to forbid Muslim
religious slaughter lie tainted motives with an intention to offend
Muslims. 179 We must be concerned about the possibility that such
prohibitions were framed in order to drive people from their new
homelands in Europe.
The United States has faced this very question in Church of Lukumi
Babalu Aye, where a religious majority used the pretext of compassion
for animals in order to attack a minority religious group that they wished
to drive from their community. 180 Notwithstanding the different
circumstances, including the particulars of the relationship between
religion and state in the U.S., the decision helps us to understand the
problem in a wider context. A sect called Santeria, whose faith
originated in Africa, came to Cuba with slaves imported for American
markets. Their religion is a mixture of Christian and pagan practices;
and as part of their ritual, believers first kill animals (fowl, ducks,
hares,
sheep and so on) in a symbolic sacrifice and then eat them.181 A group
of members of Santeria settled in Hialeah, South Florida. Their
religious way of life, and perhaps some of the members, offended the
local populace. 182 The municipality passed an ordinance selectively
forbidding ritual killings of animals in the manner of the Lukumi Babalu
Aye Church, while permitting kosher slaughter, the slaughter of animals
for food by mainstream licensed facilities, and other animal killings.183
The Lukumi Church claimed that the real aim of the ordinance was to
prevent them from living in Hialeah in violation of their right to Free
Exercise of Religion, and convinced the the Supreme Court that, indeed,
they were being discriminated against because of dislike of their
religion.184 Even though, arguably, the practice of animal sacrifice was
problematical, since the municipality did not exhibit concern for the
humane treatment of animals being slaughtered in other contexts, the
Court accepted that the purpose of the ordinance was to drive the sect
from the city. One wonders whether the Court would have reached a
different decision had the city really evidenced its true concern for
animals.
Even carving out an exception for kosher and halal slaughtering
involves questions of the limits of slaughtering regulations. We might
note that the U.S. Supreme Court compared the Santeria rituals with
kosher shechita, and next ask whether it follows that protection of
kosher shechita and halal must necessarily imply the carving out of an
exception for the animal sacrifice practices of other faiths.

When governments are attempting to devise slaughtering
exemptions, they need to consider two sorts of religious freedom
dilemmas. One of them which the Lukumi Babalu Aye case raises, as
suggested, is whether the state may permit the slaughtering practices of
some religious minorities and not others without engaging in
discrimination. The second is the situation in which members of a
religious minority are themselves in conflict over proper religious
practice, which we will consider in this section.
a. Minority vs. Minority Rights in a Religiously Pluralistic State
States that are considering exemptions for ritual slaughtering must
be serious about the need to ensure equality between minorities and not
deny one minority rights enjoyed by another minority. Some countries
like Germany, for example, accept Jewish slaughtering but are more
reluctant to exempt Halal.185 This distinction may, on its face be quite
understandable. First, the German public is particularly sensitive to the
need to ensure religious freedom to Jews as a consequence of the trauma
of the Holocaust.186 Second, Muslims in Germany clearly outnumber
Jews187 and therefore, the potential for animal suffering is more manifest
in the case of Halal slaughtering. At this juncture, as we will discuss
further, the Constitutional Court of Germany has not accepted these
distinctions as a basis on which to treat Muslim slaughtering different
from shechita.
However, the prohibition of religious slaughter is not confined to
Muslims or Jews but can also affect other religions not so well-known in
Europe or small religious groups which have only a loose structure,
which raises the question of their entitlement to an exemption as well.
Although in Church of Lukumi Babalu Aye,188 shechita was compared
with the Santeria ritual, in the end, the Supreme Court did not have to
determine whether the distinction between shechita and the Lukumi
ritual could be justified under neutral criteria because it invalidated the
ordinance based on the city’s intent to discriminate against followers of
the Church. Smaller religious groups might argue that the exemption
granted Jews and Muslims should be interpreted as discrimination
against cults or sects whose particular method of slaughtering animals is
an expression of their religious feelings, or as discrimination in favor of
“large” religions and against “small” ones.189 To be sure, one might
justify Jewish and Muslim slaughtering practices as centuries-old
traditions in European countries, rather than strange new customs
introduced by new immigrant groups, but this is no basis to justify
distinctions between religions, any more than the size of their
membership can be used to do so. Accordingly a small religious group,
even if it has recently arrived, should be entitled to its own ritual
slaughter as long as it abides by the same rules applied to Jews or
Muslims, i.e., that the slaughtering is done under supervision with the
same permit, and conforming to the same standards for the prevention of
cruelty to animals.
However, freedom of religion does not justify an attack on basic
values including the respect for animals. If we want to avoid cruelty to
animals, we need to distinguish between slaughtering for consumption
and all other kinds of “ritual” killing involving esoteric practices. The
acceptance of killing of animals for food is necessary, given that most
people do not accept vegetarianism as a way of life, but it is not
tantamount to accepting every type of animal killing based upon a
minority’s faith. The line between acceptable and unacceptable
slaughtering must be guided by the basic values of the society regulating
it, and it is not problematical for practices accepted as valid in one
society to be condemned in other societies if they violate fundamental
norms of that society.190
b. Minority within the Minority
A second problem in establishing ritual slaughter exemption, which
might be termed the “minority within a minority” problem, relates to the
fact that religious minorities might not be cohesive in terms of their
views about the methodology of religious slaughter or, indeed, who is
authoritative in establishing mandatory religious practices. In many
countries, minority religions are represented by a central body in their
relationships with government authorities. In France, for example, in
1995 the government recognized the Great Mosque of Paris as the only
body qualified to appoint Muslim slaughterers. This government
acknowledgement was opposed by those believers who did not accept
the Great Mosque’s status as sole authority for slaughtering.191

In France, the umbrella organization for slaughtering practice for
the orthodox Jewish community is the Association Consistoriale
Israelite de Paris (ACIP).192 However, some years ago, the orthodox
organization “Sha’arei Shalom” applied for permission to slaughter in
their own, slightly different way to ensure what they style “glatt kosher”
meat; but the government did not consent to recognize them, since the
government had already granted an exclusive license to the
Association.193 Sha’arei Shalom brought this case to the European Court
of Human Rights, where the French government argued that the
Association represented many more Jewish members than Sha’arei
Shalom, 194 and that Sha’arei Shalom’s reasons for asking for the
exemption were partially economic, because they wanted to undercut the
Association’s prices. In addition, the government maintained that it did
not interfere in the internal affairs of a religion and that the Orthodox
had other means at their disposal for obtaining glatt kosher meat.
The European Court of Human Rights reviewed the French
regulations in light of the European Convention on the Rights of Man
provisions on freedom of religion and the principles of traditional kosher
shechita relative to those of glatt shechita. The majority on the Court
concluded that the French were within their rights in refusing to
recognize the glatt shechita of the Sha`arei Shalom and in giving a
general permit to one agent for the Jewish community as a whole. The
Court confirmed that religious shechita was included in Section 9 of the
Convention, which affirms the right of practical expression of religious
belief, and concluded that the exclusion of stunning provided by French
Law adequately ensured the freedom of religion. At the same time, the
Court held that the Sha’arei Shalom orthodox community could only
claim injury if it could not obtain glatt kosher meat. In this case, glatt
kosher meat was readily available from Belgium195 or by means of an
agreement with the Association, the umbrella organization to which the
majority of French Jews belonged.
In our view the minority opinion in this case, however, better
expresses the principles that define freedom of religion and conscience.
This opinion held that withholding permission from Sha’arei Shalom to
engage in glatt shechita ran counter to the basic freedoms set down by
the European Convention. The minority judges, noting that it was
insufficient to say that orthodox Jews of Sa`arei Shalom could obtain
glatt kosher meat in other ways, held that the fact that the petitioners
were a minority within the minority community did not deny them the
right to be considered a religious body. The fact that the French
Government might prefer to deal with representative bodies was not the
issue, for Sha’arei Shalom did not challenge the status of the ACIP;
rather, the permission to pursue a certain religious activitiy, glatt
shechita, was at stake and its denial constituted discrimination. In the
minority’s view, permitting a second method of schechita could
certainly not interfere with public order.
We recognize that the way that the majority in this case chose to
grapple with the problem was probably guided by the same principles as
in other cases where the Court has preferred not to intervene in the
decisions of any specific country denying religious freedom claims.
Indeed, some maintain that the European Court of Human Rights is not
very enthusiastic about applying Section 9 of the Convention; and as a
result, the Court either avoids dealing with religious freedom petitions or
sides with national governments on religious freedom matters.196
Nevertheless, in this particular case, it seems that the Court leaned
toward an interpretation that was too restrictive by granting religious
rights only to the central stream of orthodox Judaism in France. There
simply does not seem to be any evidence that recognition of the rights of
other streams of Judaism to carry out their religious rituals according to
their own beliefs would harm the public order in France, as the Court
concluded, or that recognizing the rights of Sha’arie Shalom to engage
in glatt kosher slaughtering would cause more suffering to animals,
since there is no difference between ordinary kosher shechita and the
ultra-orthodox with respect to this issue. Even if this decision was
intended to square with other precedents of the European High Court by
leaving more “room to maneuver”197 to the individual countries with
regard to local conditions, as the minority report notes, this legitimate
concern cannot substitute for the proper defense of religious pluralism
which is at the foundation of a democratic society.

We might compare the French decision to the more protective
religious freedom decision handed down by the Constitutional Court of
Germany on the religious slaughtering question.198 In this case, a Sunni
Muslim owned a butcher shop in the town of Hessen, and performed
halal under a permit for many years. In 1995, this permit was revoked
by the Federal Court of Administrative Affairs after it received an
authoritative opinion from the University of Cairo that a Muslim living
in a non-Muslim country is not obliged to eat halal meat.199
However, the University of Cairo opinion is not universally
accepted by Muslims, 200 and was not accepted by the butcher shop
owner, who argued that the prohibition of slaughtering not only
impinged on his freedom of religion (and that of his customers) but also
on his freedom of occupation. The Constitutional Court accepted his
plea, stating that religious slaughtering was “religious expression” and
therefore deserved protection in accordance with the principles of the
German Constitution, whether or not the petitioner was a German
citizen.201 The German judges stressed the difficulties that might arise
for the shopkeeper himself and for his customers who followed his
beliefs, irrespective of the fact that alternatives, such as imports,202
could
alleviate the religious conflict in this case. The Court also viewed it as
inappropriate for a secular court to consider and resolve differences
between the various streams of Islam (e.g., Sunnis and Shiites) with
regard to the importance, significance or scope of obligations attending
religious slaughter. For the Court, it was enough “that the claimant
belonged to a Muslim group which could be distinguished from other
Muslim groups with regard to its religious convictions” on
slaughtering.203 Interestingly, the Court vaguely implied that it would be
preferable not to make an unequivocal statement about whether stunning
did indeed cause less suffering to the animal than religious slaughtering.
There are some voices that argue that the judgment could lead to
viewing/slaughtering without stunning as the norm and not the
exception. 204 Although this may be a somewhat far reaching
interpretation of the judgment, it is not unreasonable to ask whether the
Court’s decision does not leave a loophole that would permit
slaughtering that causes suffering to animals, in derogation of legislative
intent. Since the German Constitution has been revised to establish the
responsibility of the State for animal protection,205 we can predict that
there will be further developments in this controversy in the coming
years.
There are significant enough differences between the French and
German constitutional circumstances that a clear conclusion about what
these cases might mean for religious slaughter is difficult to reach. For
example, the juridicial question, “What is a ‘religious community?’”
never arose in France as it did in Germany as a result of Section 137 of
the Weimar Constitution still in force under the Basic Law of 1949.206
Similarly, the French case deals with a petition to grant a permit in the
first instance to an additional religious body, while the German case
involved the cancellation of a permit that the owner and his customers
had relied on to fulfill their religious obligation. Moreover, the case of
Sha’arei Shalom involves a dispute entirely within the confines of the
Jewish community, and the French court’s opinion might charitably be
treated as an attempt to reconcile the halakhic differences between the
majority and the minority. In the case of the Hessian butcher, by
contrast, the German Court was protecting the rights of a minority group
against the authorities who were denying those rights.207 In both the
French and German judgments, the burden of the decision rests on the
issue of the freedom of religion (and the freedom of occupation, in the
German case), but these Courts interpreted that right and its priority as
against animal welfare differently. While the German Constitutional
Court did not ignore the special status of animals in German law,
including the special status that Section 90a of the Civil Codex accorded
them,208 in the end that Court preferred the freedom of religion and
conscience and the prevention of religious discrimination as the most
important important concerns of the state. In the final analysis, the
German Court’s approach seems more liberal and tolerant toward
minorities, and more respectful of religious liberty because it avoids
interpretations of religious precepts which are really the province of the
religious authorities and not the Government.
In summary, it seems clear that the prohibition of ritual slaughter
impinges upon the freedom of religion and protection of religious
slaughter is required to prevention religious discrimination, as both the
German and French courts imply in their opinions. However, both cases
seem to stand for the proposition that legal permission for religious
slaughtering is entailed in the concept of freedom of religion and of
prevention of religious discrimination, even though it might cause
slightly greater suffering to animals. Therefore from the point of view
of animal defenders, these decisions could be criticized not only because
of the priority that the courts have placed on religious freedom over the
suffering of animals, but because the fact of suffering does not play a
major role in these opinions.
We believe that it is important not to neglect the suffering of
animals but it is clear that the prohibition of ritual slaughtering impinges
upon the freedom of religion. The point is that traditionally the problem
of ritual slaughtering is analyzed in terms of freedom of religion and has
not considered the question of the suffering of the animal. In our view if
we analyze the question of suffering of the animal according to the
patterns which dominate the field of animal protection, the contradiction
between the two approaches is not as great as it may appear. It is to this
issue that we will next turn.

V. SOLICITUDE FOR THE SUFFERING OF ANIMALS

The argument for prohibition of shechita is based on the contention
that it causes unnecessary suffering to the animal. By contrast, other
methods of slaughter, most prominently the practice of stunning animals
before slaughter, are called “humane slaughter.” However, we will
show that arguments that kosher shechita, at least, is not “humane” are
misplaced.

A. “Humane” Slaughter

The phrase “humane slaughter,” which is common in the U.S.209
refers to methods of slaughtering involving minimal suffering to
animals. But the use of the word “humane” with regard to slaughtering
animals is problematical. Animal advocates would ask, can killing any
animal be called “humane”? 210 Surely, the very act is cruel,
“inhumane”!211 However, unless we believe in strict vegetarianism,212
there is no way of avoiding suffering to animals if we wish to eat meat.
Therefore, the question that political communities must face is what
methods of slaughtering are acceptably “humane,” given that we do
slaughter animals. We will attempt to describe shechita as “humane” by
drawing on scientific and ethical criteria,213 recognizing that science is
evolving much more rapidly than ethics.214

1. Is the Question of Humane Slaughter a Question of Science?

Jews have traditionally regarded ritual slaughtering as less cruel
than other methods. Proponents of a ritual slaughter exception
sometimes argue that there is no scientific way of determining that other
methods, such as stunning or electric shock, cause less suffering to
animals than kosher shechita. Most religious authorities do not admit
that stunning is more humane than shechita.215 Many in Jewish circles
who have studied this problem argue that cutting the neck of the animal
causes less pain than stunning, with some adducing scientific evidence
for their views.216 As they note, with stunning, there is the danger of
preventing the flow of blood to the animal’s brain, or damage to the
muscles and problems of coagulation of blood.217
Rabbi Dr. R. di Segni has written:
Many contemporary writers have tried to attack shechita on the
grounds that it causes suffering and torture to animals and that
there are better ways to ease this. Starting from this statement they
end up by prohibiting Jewish shechita. In fact many scientists
have debated the issue and produced evidence in the defense of
shechita. The medical view and considerations of the prevention
of cruelty to animals, all points to the fact that shechita is the ideal
death.218
According to Dr. Zichron Chason:
Shechita is intended to extract the maximum amount of blood,
(blood=soul) while stunning may reduce the flow of blood from
the body. Various forms of stunning cause reduced blood
pressure, with the result that more blood remains in the body.
Cows have many traumas in their lives, and the level of pain
experienced during shechita is not greater than one of those
traumas. The cow does not feel any special pain. This may be
proved from the experience of the trauma units of hospitals which
admit patients with lesions of which they are unaware. We know
about the motorcyclist who did not feel that his legs were cut. The
same applies to animals. Conversely, electrical stunning causes
great suffering for the animal, since it involves a kind of
unfamiliar pain. In some methods, a minor error may cause
tremendous pain, so from this aspect too, shechita is preferable.219
Rabbi Shalom Yitzchak Ha-Levi has similarly made an extensive
argument against stunning as a “humane” practice:220
Re: stunning the animal before shechita:
On the face of it, it might be possible to allow stunning before
shechita if it were possible to be completely sure that the effect of
the application of electricity to the animal throughout did not run
counter to the Sages’ views regarding the fitness of the animal for
eating. The problems involved in stunning are complex and of the
utmost importance to all Jewish communities. They may be listed
under six headings:
1. the fear of “nefulah” (the case of an animal falling from a
height);
2. the fear of “mesukenet” (the case of an animal in mortal
danger);
3. the fear of limbs being crushed;
4. the fear of internal organs being scorched;
5. the reliability of the doctors;
6. stunning as an aspect of cruelty to animals.
The way an electric current works in the body needs to be clarified
and here I quote the words of a number of doctors I have
consulted.
Passing an electric current through the body of an animal may
cause:
a. Pain
b. Cramp in the muscles
c. Loss of consciousness lasting from a number of minutes to
hours, and when consciousness returns, it is accompanied by pain
and cramps as well as depression, mental disturbances and
neuroses
d. Loss of consciousness may also lead to death as a result of
shock or sudden arrest of the heart or of breathing
e. At the point of entry of the current, the body may be burnt,
there may be local hemorrhages in the brain, the spinal cord, the
lungs, the pericardium and the dura mater
f. The cells of the ganglia often show signs of degeneration.
Considerable congestion can arise in the internal organs as a result
of heart paralysis. The blood often appears thinner and more
liquid than normal as a result of haemolysis
g. The animal immediately loses consciousness and all feeling
h. The current may destroy brain cells or simply paralyze them
i. Because of the immediate loss of consciousness the animal may
fall heavily to the floor
j. There is always the possibility of cardiac or pulmonary arrest
Some doctors believe that changes in the weather and other outside
circumstances have an effect on stunning. [. . .] All the above are
included in my six headings above and require further elaboration
[. . . .] Therefore, in light of all that has been said and the changes
that take place in the animal’s body from an electric current and all
the uncertainties that arise, it is quite obvious that meat from a
stunned animal cannot be permitted for consumption and it falls
into the category of unfit carrion. May the Lord save us from
wrong decisions and reveal us the miracles of His Torah.221
In his book, Dr. Levinger similarly discusses in detail the scientific
problems associated with shechita in all its stages and the various
methods of stunning and comes to the conclusion that “in comparison
with other methods of slaughter, shechita is at least as humane as any
other.”222

Thus, virtually all Jewish authorities are firmly convinced that
stunning might even cause more suffering to the animal. However,
these are certainly not the only voices on the subject. Antagonists to
ritual slaughtering find support in the report prepared in 1985 by the
Farm Animal Welfare Council (FAWC) about religious slaughter. That
report states that there is insufficient scientific evidence to determine
just when the animal ceases to feel pain, but that the loss of
consciousness which occurs after the cut is not immediate. Accordingly,
the Council concludes:
[U]p-to-date scientific evidence available and our own
observations leave no doubt in our minds that religious methods of
slaughter, even when carried out under ideal conditions, must
result in a degree of pain, suffering and distress which does not
occur in the properly stunned animal.223
In FAWC’s 2003 report, the Council criticized ritual slaughtering,
denouncing it as unacceptable; and Recommendation 201 suggested that
the Government repeal the current exception. According to this report,
with ritual slaughtering, it may take up to two minutes for the animal to
bleed to death, which amounts to abuse and cruelty toward the animal.
The British Government accepted the claim that animals that receive an
effective pre-cut stun do not experience pain at the time of slaughter;
however, it rejected the Council’s recommendation to prohibit ritual
slaughter due to its commitment to respect the right of religious
groups.224
In our opinion, the discussion about pain to the animal is certainly
very important in adopting a position regarding the question of ritual
slaughtering. However, by itself, the evidence about the relative pain of
ritual slaughter vs. slaughter with stunning is insufficient to come to a
definite conclusion about which methods are sufficiently humane. As
long as it is not possible to determine with certainty that the amount of
suffering caused by one method is considerably greater than that caused
by another, and realizing that some permitted methods involve even
more suffering than ritual slaughtering, it is difficult to accept any
reason whatsoever why kosher shechita should be banned.
However, we need to recognize that the issues involved in
slaughtering are not only physiological, i.e., about measuring the amount
of pain experienced by the animals. They are also moral and ethical.225
To state that shechita is humane implies that it also meets certain moral
criteria, a question to which we will now turn.
2. Can the Question of Ritual Slaughtering Be Resolved Morally?
In common with many others, we believe that mankind is obliged
to treat animals morally since they are by definition, the equivalent of a
“moral patient” upon which226 man, as a “moral agent,” acts. As a moral
agent, man has a moral responsibility toward those who have a different
moral status. 227 Jews and Muslims believe that they are properly
accepting moral responsibility toward animals when they engage in
ritual slaughter, and that it is thus not immoral. For a Jew, shechita must
be pure, clean and humane,228 and he must constantly be on the lookout
for the best way of preventing suffering to the animal. Jewish law
imposes strict demands regarding the professionalism of the slaughterer
not required in other cultures. The Jewish slaughterer must have
extensive training,229 and above all, he must have moral integrity and
must exhibit right conduct.230
No Jew or Muslim would see in kosher shechita or halal a wanton
act of cruelty, but rather, both would consider this act a manifestation of
religious ethics. It is in this spirit that Jews and Muslims could easily
maintain that kosher shechita or halal slaughtering ought to be
recognized as an acceptable method to be practiced by society as a
whole, but this is probably going too far. For most Europeans and
Americans, schechita or halal is simply a ritual identified with particular
religions and it would be difficult to conceive it as part of the European
or American cultural pattern. Still, religious slaughtering can be
justified as no less legitimate from a moral standpoint than the
majority’s preferred methods. The moral approach of Jews can be
discerned from the description of the late Rabbi Kook of his vision of
the future:231
The free inclination of morals concerning animals in general and
the demand for their rights from humankind is rooted spiritually
and naturally in the depths of the Torah. In the treasure house of
original man the seed of spiritual light (which later was to be
found in Israel) was scattered among unmarked individuals in the
national fabric. Even before the languages were confused, morals
demanded the rights of animals and “Adam was not permitted to
eat meat.” “Behold, I have given you every herb yielding seed,
which is upon the face of all the earth, and every tree, in which is
the fruit of a tree yielding seed—to you it shall be for food.”
Indeed there is a hidden rebuke within the folds of the Torah
regarding the eating of meat for it was only after “. . . you shall say
‛I will eat meat’ because your soul desires to eat meat . . . then you
shall sacrifice and eat” (Deut XII). [. . .] So the commandments
were given one after the other and eating meat was one of the steps
leading to the supreme end. The living creatures that are permitted
for food are restricted to the more suitable to man’s nature. The
blood of the slaughtered animal or fowl is covered so that the
iniquity done to them should be recognized and noticed.
Admitting the disgrace is the beginning of the moral healing
process “that you may remember and be ashamed” (Ezek 16:63).
Cover the blood! Hide your shame! These actions will yield their
fruit, in the course of time the generations will learn. Today’s
silent protest will become a loud and mighty call that will succeed.
The laws of sacrifice, in a particular order, easing the pain, all
these strengthen the impression that this is not anarchy, that you
are not dealing with an automaton that has no living spirit but with
a soul. This animal which serves man’s table—the Divine protest
cannot withstand man’s rights until the time comes.232

Rabbi Kook continues his didactic essay with references to other
commandments in the field of eating meat:
[M]ixing meat with milk is a serious transgression, an action
intimately mingled the oppression of life, soul and property rights;
milk which is so natural for the newborn infant to get pleasure
from the milk of its mother, was not created to soak your stomach.
Though you are so hard and cruel as to eat meat, the right of the
suckling has a natural precedence for the milk, it precedes you.
Just as covering the blood (after shechitah) associates “Thou shalt
not kill” to all life forms, and the prohibition of meat and milk and
mixed seeds is tied to “Thou shalt not steal” and “Thou shalt not
oppress,” so does the prohibition of eating the meat of a sick
animal is associated with the obligation to support and visit the
sick of all living things. At least have mercy on the forlorn if your
hard heart does not pity the healthy and the strong!233
Ultimately, of course, the very best situation would be to prevent
all suffering to animals. As Peter Singer puts it:
If a being suffers there can be no moral justification for refusing to
take that suffering into consideration. No matter what the nature
of the being, the principle of equality requires that its suffering be
counted equally with the like suffering—in so far as rough
comparisons can be made—of any other being.234
However, this view has its opponents in those who maintain that there
cannot be horizontal equality between animals and humans, and that any
moral approach should assume a vertical view regarding the relationship
between animals’ interests and human interests.235 Moreover, taking
preferences and needs of animals into account does not mean that they
must always be given exactly the same weight as the preferences and
needs of humans.236 It is interesting to note here that thinkers like Peter
Singer, who are active on behalf of animals, are not bothered by
accepting kosher shechita as such, but rather by their view that its result
is unnecessary suffering when it is carried out without previous stunning
or by other procedures thought to be cruel, such as holding the animal in
a hanging position as performed in U.S. slaughterhouses.237
As we move the question of slaughtering from the scientific to the
moral realm, we widen the field for discussion since, until not long ago,
kosher shechita was without doubt more humane and morally acceptable
than other “secular” methods of slaughter. Certainly, the prevention of
cruelty to animals is not a static concept but must evolve as scientific
research sets different parameters for animal suffering and for
alternative ways to prevent it.238
On the other hand, religious belief is fixed and immutable.239 The
Jews practiced humane and moral shechita at a time when other nations
gave little thought to such matters. 240 Obviously, from a religious
standpoint, the issue of stunning did not have to be grappled with until
the issue arose in the last century,241 as new techniques, rather than
changing moral standards, called for re-consideration of the issue by the
religious authorities who determine the Halakhah.
We would suggest that these new techniques should cause all
persons who are concerned about humane treatment of animals,
whatever their religious beliefs, to approach the problem from a new
angle. If we can agree that the chief issue which has created the
controversy is the common goal of avoiding unnecessary suffering, we
might ask, to what extent can the suffering caused by kosher shechita be
regarded as “unnecessary”?
B. “Unnecessary Suffering”
The distinction between necessary and unnecessary suffering of
animals is without doubt one of the thorniest points in the struggle for
the defense of animals, since the very distinction encompasses
acceptance of the fact that a certain measure of pain is inevitable when
we slaughter animals. The acceptance of this pain underscores the
instrumental character of animals in our culture, a reality which certainly
may jeopardize the protection of animals precisely because it is always
possible to argue that every human consideration, including economic
efficiency, justifies the suffering of animals. Defining the line between
necessary and unnecessary suffering is difficult, though it is perhaps
more difficult for most modern people to accept the fact that this
distinction rules out some human behavior toward animals as improper
and even immoral.
For example, the distinction between necessary and unnecessary
suffering has been described by the Colorado Supreme Court:
Every act that causes pain and suffering to animals is prohibited.
Where the end or object in view is reasonable and adequate, the act
resulting in pain is, in the sense of the statute, necessary or
justifiable, as where a surgical operation is performed to save life,
or where the act is done to protect life or property, or to minister to
some of the necessities of man.242
This description of the distinction between necessary and unnecessary
suffering is certainly far from expressing an ideal situation or ethical
principle. Rather, it refers to the current reality in which man uses
animals for his own ends and determines the measure of acceptable
suffering only according to needs, preferences and values of humans.
This description is extremely problematic because it implies that under
certain circumstances, mankind is at liberty to cause suffering to animals
when it suits his purposes, whereas when an action affects human
beings, there can be no justification for causing suffering irrespective of
any benefit it might bring to another.243 We can see that in this view, the
only criteria for determining what is owed animals are utilitarian (not
taking animals into account as subjects whose pain is considered in the
utilitarian calculus)244 whereas with human beings, a more deontological
approach is demanded.
In this view, man’s relation to animals is based on what is
generally defined as a balance of convenience, that is, the interests of the
animal are a function of its use to man, who will justify animal suffering
when human interests are perceived to be more valuable.245 To be sure,
thinkers like Tom Regan and Peter Singer are up in arms against this
viewpoint, but it reflects the state of reality in animal husbandry today.
Even in countries such as Switzerland with their “extensive protection of
animals,” a certain amount of animal suffering is permitted.
The most notable expression of this preference for human interests
is to be found in the use of animals in experiments, where in striking the
moral “balance,”246 ethicists have concluded that there needs to be no
outright prohibition against the use of animals in experiments. Rather
experiments should concentrate on ethical procedures to ensure that
experiments are carried out with minimum suffering, with a commitment
to refining methods and seeking less painful alternatives wherever
possible.247 The reality of animal experimentation today is the practical
application of the theory known as R-R-R, i.e., “Reduce-Refine-
Replace.” 248 However, until now, ethicists have not been able to
establish criteria that would require the replacement of animals in
experiments. For example, they have been stumped by the question of
whether moral considerations for the suffering of animals should
outweigh economic ones if it turns out that the replacement of animals
with other experimental objects is too expensive to make the proposed
product marketable.
Of course, we should be cautious about comparing animal
experimentation with slaughter because they differ in purpose, means
and values; and Jews and Muslims cannot accept the idea that ritual
slaughter should be “replaced or refined” because of religious mandates.
At the same time, there is no reason why a similar kind of
balancing of moral alternatives might not be sought with regard to
religious slaughter. The very idea of unnecessary suffering is based to a
certain extent on the dialectics between ends and means. The
designations “unnecessary” or “exceptional” apply not only to the
animals but also to the purpose for which the animal suffers.

In order to decide what is permissible and what not, a distinction
must be made between an acceptable purpose and one which is
unacceptable, in which case the animal’s pain is unjustifiable. For
example, killing a fowl or a cow for food is acceptable (except for
vegetarians), whereas killing that occurs during an animal contest such
as cock-fighting is not because its sole purpose is the amusement of
human beings. Suffering that is imposed on animals in order to enhance
a public performance, such as in a movie, is not acceptable, while the
same amount of pain might be considered legitimate in the case of
animal experiments which are designed to prolong life.
Similarly, when the purpose is a proper one, care must be taken
that the methods used are also properly tailored. The theory behind the
prevention of cruelty to animals maintains that a specific practice can
legitimately be described as causing unnecessary pain as soon as another
method can be substituted without interfering with the legitimate
purpose of the practice or other legitimate, overriding interests.
Moving from these general principles to the particular case we
consider, how does religious slaughter fit in with the conflict between
freedom of religion and prevention of cruelty to animals in this model?
One whose premise is that religious slaughter causes more suffering than
other slaughtering methods still concedes that the basic purpose of
slaughtering, killing for human consumption, is legitimate (or at least is
accepted as legitimate by the majority). It is the means that he or she
claims are not acceptable because as long as it is possible to use a
different technique which seems to cause less pain, the suffering
involved is unjustifiable. However, this calculus ignores the fact that
ritual slaughter involves not just the purpose to feed human beings, but
the protection of freedom of religious expression for a particular group,
which is certainly a fitting principle. If we were to illustrate this
relationship as the two sides of this debate see it, it might look
something like this:

End Means
Need To Provide Food249 Slaughter
Freedom of religion→→→→→→→→religious slaughter allowed
Protection of animals→→→→→→→prohibition of ritual
slaughter because if causes
unnecessary suffering250

Those who wish to abolish religious slaughter examine the means
of slaughtering in the light of only one end, the need to provide food;
but they ignore the second aim, the need to protect the freedom of belief
of those who believe they are compelled by God to slaughter in a
specific way. Without taking into consideration this important value,
they are essentially equating the Jewish or Muslim slaughterer who is
doing his job according to the religious law in which he believes to one
who slits an animal’s throat for his own amusement. The prohibition of
shechita defines both acts as maltreatment by using different criteria
from those used to define cruelty to animals.
By contrast, our proposed approach tries to put the essence of the
problem within a wider framework of the ethical and religious
perceptions about the suffering of the animal. When animals are used
for human purposes in other cases, the moral decision-maker takes for
granted that certain amounts of suffering should be permitted. In such
cases, he bases his decision not on “animal” considerations but on
ethical-human ones. The determination a priori that a method run
counter to animal protection without consideration of all interests
involved marks a departure from the ethical criteria used to prohibit
unnecessary suffering in general.
Protection of freedom of religion and avoiding an attack on a
fellow citizen’s right to religious expression do not stand in opposition
to the suffering caused to the animal, but are part and parcel of the
process of deciding whether the suffering is excessive or not. The a
priori assertion that the right to religious practice is offset by the
prevention of pain caused by religious slaughter ignores the values of,
and benefits to all parties involved. While it may be difficult, at first,
to
accept that the judgment that action cruel to animals must be governed
by different criteria in one case than in another, it seems to us that
animal protectionists should not jeopardize their goals by ignoring
religious obligations that are an essential part of determining whether
animal suffering is unnecessary or not. Conversely, Jews and Muslims
should be open to understanding the feelings of those who care about
animal suffering, and take their concerns seriously as they deal with all
animal life, including in ritual slaughter and the consumption of meat.
Ultimately, the final decision on permitted animal suffering must
include a serious consideration of values and religion within and not
outside the definition of “unnecessary suffering.” Otherwise, there is the
threat that when animal suffering is the subject of moral reflection,
society will adopt a utilitarian approach to all questions of animal
suffering except for religious slaughter, where only the inherent rights
of animals will be considered, resulting in moral inconsistency at the
expense of a minority religious group.
To recognize a current exception for traditional ritual slaughter
does not entail that the decision about acceptable slaughtering practices
has to be made for all time. All moral reflection must consider the
promise of technological advance; and on the future, it may be possible
to talk about some system that produces no pain at all in slaughtering, or
to discover a method of stunning that will be congruent with the
religious principles of Judaism or Islam. But at present, this is only a
theoretical possibility. When scientific advances offer a way of
unequivocally preventing animal suffering, Jewish and Muslim religious
leaders will have to sit down and discuss whether religious law can be
harmonized with science and adapted to the new knowledge.251 On the
other hand, while much remains to be done to improve the attitude and
efforts of mankind toward preventing animal suffering, so long as we
cannot ensure that animal welfare is better served by stunning there is no
point in making stunning compulsory.252
Finally, we might want to ask whether there are any “alternatives”
that may afford some sort of leeway to justify the prohibition of ritual
slaughtering in those nation-states where a majority feels strongly about
these practices, thus cushioning the possible diminishment of freedom of
religion. We will thus consider the alternative of importing kosher or
halal meat instead of ritual slaughtering in a country with such a ban.

VI. IMPORT OF KOSHER MEAT—A POSSIBLE SOLUTION?

We have noted that in the Sha’arei Shalom case, the French Court
justified the prohibition of religious slaughter because of the availability
of imported kosher meat, reasoning that the French ban could not violate
religious freedom if adherents had an alternative to violating the ban.
Indeed, most countries that prohibit ritual slaughtering do go to the
trouble of regulating the permitted import of kosher meat;253 and in
Sweden, it is even subsidized. Certainly, to a certain extent, the import
of kosher meat “ameliorates” the prohibition, and is a less drastic
infringement on the freedom of religion than those who would go so far
as to advocate forbidding Jews and Muslims to eat even imported kosher
meat. But permitting importation is not a true solution to this difficulty,
since it is not just the consumption but also the shechita itself that is
part
of the Jewish way of life, just as the Jewish community, like any other
religious community, must have its schools, synagogues and cemeteries.
Moreover, it is not clear how the importation solution would resolve any
justifiable concern with animal suffering, since animals still must be
slaughtered elsewhere to make kosher meat. Should it make any
difference whether the animal is slaughtered in Switzerland, Italy or
Israel? Is the suffering of a Swiss animal more important than one of
another country?
Of course, one might justify this distinction by noting that Sweden
and Switzerland have no right to interfere in the laws and policies of
other countries which permit kosher shechita. Animal rights advocates
may even distinguish imported meat because they believe their
community’s concern is with animals that are found within their borders
and they have no right to meddle in the affairs of foreign countries.
Similarly, if shechita does take place elsewhere, there is nothing wrong
with Jews or Muslims consuming such meat in countries that ban
schechita, for they are not engaging in any act which violates the ban.
However, this argument is a bit deceiving because it pays no heed to the
issue of supply and demand. A country permitting ritual slaughter will
clearly slaughter more cattle knowing that some of the meat is destined
for citizens of a foreign country, thereby causing suffering to more
animals.
Some might analogize this problem to laws forbidding forcefeeding
geese, which are meaningless if the sale and consumption of
patè de foie gras is not also prohibited, but we should be extremely
reluctant to compare force-feeding with kosher shechita since the
purpose for these actions and the amount of suffering are so different.
Force-feeding, which entails considerable maltreatment of geese, is
solely a commercial matter aimed at satisfying the discrete demands of a
particular public that wants to partake of a non-essential delicacy. The
ramifications of forbidding kosher shechita are far greater—if one were
to imagine that all the countries of the European Union were to agree on
forbidding the consumption of any meat slaughtered by shechita or
halal, the potential human rights violation with regard to Jews and
Muslims would be considerable.
In considering the acceptability of a kosher import alternative, we
must also consider the economic implications of this alternative, just as
the case of the ultra-orthodox Jewish community in France raised this
consideration. We would need to consider the effect of the significant
cost of importing kosher meat on the religious freedom of Jews and
Muslims.254 This cost would be borne by Jews and Muslims, whether
because they ate non-kosher meat in violation of their religious beliefs
because of cost, or because they were forced to pay higher prices to
conform to religious mandates. Either alternative represents an
infringement on religious freedom, albeit a somewhat lesser one than
where there is a complete ban on the import of kosher meat. In banning
schechita, Sweden has offered a more palatable alternative by
subsidizing the import of kosher or halal meat,255 so that the economic
burden of preventing cruelty to animals falls upon the whole population
instead of the minority which needs to be protected. Of course,
subsidies may have other paradoxical consequences. For example, they
may even encourage the consumption of meat and thus more animals
will be slaughtered abroad. Or, subsidies might lead to even more
religious discrimination, since the larger the religious minority
population, and thus the greater the general burden of subsidizing kosher
meat or halal, the more public opinion might oppose the entry of Jews or
Muslims.
Besides the question of religious freedom for meat consumers,
importing does not provide a satisfactory solution to the problem of
freedom of choosing an occupation since the prohibition of kosher
shechita does not allow anyone whose job is kosher slaughtering to earn
a living.256 In the case of the Muslim butcher shop in Hessen, the
German Constitutional Court considered this concern and decided that
the prohibition was not justified for just that reason, since the
slaughterer
had no other business. This suggests that the freedom to choose one’s
occupation will trump animal rights arguments in most cases. Since
most suffering by animals in agriculture occurs in the context of the
slaughtering livelihood, the effect of a ritual slaughtering ban is to
eliminate a number of slaughterers, which produces a rise in prices and
possibly a lowering of profitability and customer base. In fact, in some
countries, such as Italy, ritual slaughter is permitted to enable Italian
farmers to export meat to Muslim countries.257

* * *

This article has focused on the issue of ritual slaughter in the light
of the legal situation in Europe. However, it is impossible to conclude
without wondering whether Israel, too, should not forbid kosher
shechita. Unlike countries which forbid kosher shechita but permit the
import of kosher meat, Israel, where kosher slaughter is obviously
permitted, forbids the import of non-kosher meat. This situation poses a
possible offense to animal supporters, who for ideological reasons
support stunning but cannot obtain access to meat produced by
stunning.258 It is possible to wonder whether Israel, too, should not
forbid kosher schechita!259 Clearly, this debate is inseparably linked
with the ongoing debate in Israel about the relationship between the
secular and religious sectors and the Jewish character of the state; and
any abolition of religious slaughtering would adversely affect not only
observant Jews but also the Muslim population.
We must concede that, just as a far-reaching prohibition on ritual
slaughter creates a conflict for observant Jews and Muslims in Europe,
where they are minorities, non-vegetarians in Israel who believe they
should not eat the meat of an animal killed by methods at odds with their
beliefs about animal protection pose a valid challenge to the state of
Israel. And, certainly, there are those in Israel who believe that kosher
slaughtering creates unnecessary suffering for animals and would like to
compel stunning. However, no operative proposals have been put forth
to create non-kosher alternatives for such people, and since kosher and
halal slaughtering will not be banned in a Jewish state, we do not foresee
such a likelihood. This is particularly true since there is not unanimity
on this issue as there was in the case of force-feeding geese for pate,
which was banned by the Israeli Supreme Court. Given that there
appears to be more cruel treatment of animals in Israeli agribusiness
than in slaughtering, this issue is also not likely to play a central role
on
the agenda of animal welfare groups in Israel. However, it may in the
future assume much more importance if new methods that can
significantly diminish the suffering of slaughtered cows are discovered.
There is no doubt that if the issue came up for public debate or before a
court, the European experience would carry significant weight; and for
this reason, the Israeli public needs to be conversant with the situation in
other countries.

SUMMARY

We have argued that the struggle on behalf of animals needs to
balance the prevention of cruelty to animals and religious freedom from
a broader perspective. It is doubtful whether such a balance can be
reached by a comprehensive prohibition of kosher shechita. Moreover,
permitting schechita and halal does not exclude the advisability of
bringing Rabbis, Jewish halakhic authorities and Muslim clerics
together for creative thinking about how we might minimize the
suffering of animals while observing the religious values which are the
basis of a pluralistic and tolerant society.
Where the proper treatment of animals is concerned, we too hope
to walk in the way of perfect goodness: “On that day I will make a
covenant with the beasts of the field and the fowls of heaven and with
the creeping things of the ground, and I will break the bow and the
sword and the battle out of the land” (Hos 2:20).260 In the meantime, we
would do well to remember the words of the contemporary halakhic
authority Rabbi Isaac Jacob Weiss in his book of Responsa Minchat
Yitzchak, warning us not to be satisfied with deciding the law. As he
concludes, “All the above relates to the law itself but there remains the
moral aspect and we have seen how much emphasis our revered sages laid
on the prevention of cruelty to animals[.]”261 Rabbi Weiss then goes on to
state that “as explained at length in Sefer Chasidim (The Book of the
Pious)”:
Be kind and compassionate to all creatures that the Holy One,
blessed be He, created in this world. Never beat nor inflict pain on
any animal, beast bird or insect. Do not throw stones at a dog or a
cat, nor kill flies or wasps.262
If the debate on animal rights is going to become part of the
international discussion of human rights generally, then it will only be
fruitful if all interested parties refrain from statements that clearly
offend
groups who may hold the same ethical principles as they do but apply
them differently, including those who believe in practicing these ethical
principles consistently with their religious faith. We hope that the
international community of persons involved in these discussions, both
religious and secular, can agree to treat other people, not just the animals
that are the focus of these discussions, with kindness and compassion.263
261. Responsa, Minhath Yitzhak # 155. This Responsum is presented (in
Hebrew) in the Bar
Ilan University Responsa Project CD; see supra n. 176.
262. Id. Also see Rabbi B. Lao Teudath Kashruth, Behinath Hamuzar Vemah
Shesaviv Lo, 1
Maagalei Zedek 20 ff. (2004) (Hebrew) (discussing ethical problems in the
context of cruelty
toward animals and suggesting that the grades of Kosher licensing should
take in to consideration
the element of animal suffering). “So far we have stated our objections from
the humane point of
view, and these objections in themselves are of a religious character since
it is an integral principle
of the Jewish religion to be humane to animals.” Soloman David Sassoon, A
Critical Study of
Electrical Stunning and the Jewish Method of Slaughter (Schechita) 21 (2d
ed., Soloman David
Sassoon 1955). “Schechita seems to us to be more humane, and certainly not
less humane, than
the method of stunning.” Id. at 34.
263. See Animal Welfare in Europe, supra n. 31, at 8.

NOTE
1. Ps 145:9. All quotations from Hebrew sources are the authors’
translations, unless
otherwise noted.
2. We chose to focus on this problem as it surfaces in Europe, where Jews
and Muslims (the
most injured parties of this prohibition) are minorities. Obviously some
parts of the present
analysis are appropriate if and when the subject is raised, for instance, in
Israel. We decided to
prepare this paper in view of the renewed interest in the subject, as
expressed by the decision of
the Italian authorities who appointed a special commission to prepare a
report on the topic. We
deal with this report below.
3. As will be explained later, this is an equivocal issue. Many experts are
of the opinion that
there is no scientific evidence that ritual slaughter causes more suffering
than other methods.
4. On the problems involved in the definition of animal suffering as
unnecessary see infra
Sec. V(B).
5. See e.g. J. Bazak, Vandalism and the Prohibition of Wasteful Destruction
(Deut. 20:19), 1
Techumin 329, 336 (1980); Ray S. Aviner, Crop Dusting and Cruelty to
Animals, 6 Techumin 432
(1985); S. Rosenfeld, Destroying Surplus Live-stock, 11 Techumin 258 (1989);
A. Meisels,
Scientific Experiments on Animals, 14 Techumin 366 (1994); A. Steinberg,
Cruelty to Animals
and the Halakhah, 1 Assia 263 (1989).
6. For example Pythagoras who, according to some accounts was opposed to
animal
sacrifices and was a vegetarian advocate, as was testified to by Plutarch.
See Plutarch, Plutarch’s
Moralia vol. 12, 541 (Harold Cherniss & William L. Helmbold trans., Harv. U.
Press 1957); see
also James A. Serpell, Attitudes Toward Animals: Pre-Christian Attitudes, in
Encyclopedia of
Animal Rights and Animal Welfare 76, 77 (Marc Bekoff ed., Greenwood Press
1998).
7. See Peter Singer, Animal Liberation 188 (2d ed., Pimlico 1995)
[hereinafter Singer,
Animal Liberation]; Zeev Levy & Nadav Levy, Etikah, regashot u-và ale-hayim
(Ethics, Emotions
and Animals) 25 (Hotsaat ha-sefarim shel Universitat Hefah 2002).
8. It is worthwhile to point out that thinkers like Seneca (who was a strict
vegetarian over
his youth) and Plutarch showed due concern for animal welfare. See Plutarch,
supra n. 6, at vol.
12, 541; Lucius Annaeus Seneca, Ad Lucilium Epistulae Morales vol. 3, 243
(Richard M.
Gummere trans., William Heinemann 1953); see also Miriam T. Griffin, Imago
Vitae Suae, in
Seneca 1, 7 (C.D.N. Costa ed., Rutland & Kegan Paul Ltd. 1974); D.A.
Russell, Letters to
Lucilius, in Seneca, supra at 79; Italo Lana, Luicio Anneo Seneca 72
(Loescher 1955).
9. Gen 1:28; see also Levy & Levy, supra n. 7, at 57.
10. Gen 1:29-30.
11. Rashi to Gen 1:29-30. Rashi’s comment is based on BT (Babylonian Talmud)
Sanhedrin
59b. Rashi (1040-1105) is an important Jewish commentator of the Bible and
the Talmud. For an
English translation of Rashi’s commentary to the Pentateuch, see Rashi,
Pentateuch with Targum
Onkelos, Haphtaroth and Prayers for Sabbath and Rashi’s Commentary vol. 1,
7f (M. Rosenbaum
& A.M. Silbermann trans., Shapiro, Vallentine & Co. 1946).
12. Gen 9:3.
13. Rashi to Gen 9:3, also based on BT Sanh. 59b. See Rashi, supra n. 11, at
vol. 1, 37.
14. See J.B. Sermoneta, L'antropologia biblica nella Guida dei Perplessi di
Moses
Maimonides e il suo capovolgimento nel Trattato teologico-politico di
Benedetto Spinoza, in
Annali di Storia dell'esegesi' 7/1, at 80 ff. (1990) (regarding the duties
of man to serve God).
15. See S. Many, Animaux, Dictionnaire de la Bible Supplement 603 ff. (Paris
1928); S.J.
Sierra, Il rapporto con il mondo animale e l'Ebraismo, in Gli Animali e la
Bibbia: i Nostri Minori
Fratelli 27 (Piero Stefani ed., Garamond 1994); see also Yitshak Nahman ben
Avraham Eshkoli,
Tsa ̀ar ba ̀ale hayim (The Prohibition Against Causing Pain to Animals)
(Ophakim 2002). It must
be noted that the Halakhah does not permit attendance at bull-rings and
similar spectacles where
animals fight each other. R. Obadia Josef, Responsa Yechave Daath Pt. III, §
66 ff., p. 207 ff.
(Jerusalem 1980). This Responsum is presented (in Hebrew) in the Bar Ilan
University Responsa
Project CD; see infra n. 176. See Levy & Levy, supra n. 7, at 33; Noah J.
Cohen, Tsàar ba ̀alei
hayim—The Prevention of Cruelty to Animals: its Basis, Development and
Legislation in Hebrew
Literature (Cath. U. Am. Press 1959). Also see Nahum Rakover, The
Multi-Language
Bibliography of Jewish Law 536-537 (Lib. Jewish L. 1990) (for a
bibliography).
16. Exod 20:10; see Deut 5:14 (regarding the ownership status of animals as
comparable, in
several aspects, to that of slaves); see e.g. Levy & Levy, supra n. 7, at
62.
17. Lev 22:28.
18. Moses Maimonides, The Guide for the Perplexed 371 (M. Friedlander
trans., Dover
Publications 1956) [hereinafter Maimonides, The Guide for the Perplexed].
19. Deut 22:10. Rashi explains: “It applies to any two different species,
and it is also
prohibited to tie them together to carry a burden (hitch them to a wagon).”
See Rashi, supra n. 11,
at vol. 5, 109 ff.
20. Deut 22:6; Maimonides, The Guide for the Perplexed, supra n. 18, at 370
(explaining this
law); see also Elijah Judah Schochet, Animal Life in Jewish Tradition:
Attitudes and Relationships
148 (Ktav Publg. House 1984).
21. We should also note the consideration for animals required at meal
times. The Talmud
says that one must not start a meal before feeding his animals. BT
(Babylonian Talmud),
Berakhoth 40a.
22. G.H. Bousquet, Les animaux et leur traitement selon le Judaisme, le
Christianisme et
l’Islam, 9 Studia Islamica 31 (1958); Al-Hafiz B.A. Masri, Animal
Experimentation: The Muslim
Viewpoint, in Animal Sacrifices: Religious Perspectives on the Use of
Animals in Science 171, 184
(Tom Regan ed., Temple U. Press 1986); Paul Waldau, Religion and Animals:
Islam, in
Encyclopedia of Animal Rights and Animal Welfare, supra n. 6, at 291.
23. See Richard D. Ryder, Animal Revolution: Changing Attitudes towards
Speciesism 28 (2d
ed., Berg 2000).
24. Charles Wesley Hume, The Status of Animals in the Christian Religion (2d
ed.,
Universities Fedn. Animal Welfare 1957); Andrew Linzey, Religion and
Animals: Christianity, in
Encyclopedia of Animal Rights and Animal Welfare, supra n. 6, at 286.
25. See e.g. Mike Radford, Animal Welfare Law in Britain: Regulation and
Responsibility 16
(Oxford U. Press 2001).
26. It was also known as Martin’s Act. See Radford, supra n. 25, at 39;
Simon Brooman &
Debbie Legge, Law Relating to Animals 141 (Cavendish Publg. 1999).
27. See e.g. Cruelty to Animals Act (Animal Protection), 5754-1994, L.S.I.,
1447, p. 56
(1994) (Isr.) (forbidding abuse or cruelty to animals); Protection of
Animals Act, 1911, 1 & 2
Geo. 5, c. 27 (Eng.); Wild Mammals (Protection) Act, 1996, c. 3 (Eng.).
28. See e.g. Cruelty of Animals Act (Experiments), 5754-1994, L.S.I., 1479,
p. 298 (1994)
(Isr.). Cf. Animal Welfare Act, 7 U.S.C. §§ 2131-2159 (2000); Animal
Protection Act, 1988, SFS
1988:534 (Swed.); Animal (Scientific Procedures) Act, 1986, c. 14 (Eng.).
29. See e.g. Jordan Curnutt, Animals and the Law: A Sourcebook 290 (ABC-CLEO
2001).
30. Abandonment of Animals Act, 1960, 8 & 9 Eliz. 2, c. 43 (Eng.).
31. See e.g. Convention of International Trade in Endangered Species of
Flora and Fauna
(CITES) 1973; see also Julian Palmer, Animal Law 49 (3d ed., Shaw & Sons
2001); Animal
Welfare in Europe: European Legislation and Concerns 45-46 (David B. Wilkins
ed., Kluwer L.
Intl. 1997).
32. For example, a number of laws in Israel relate to animals, without
precisely dealing with
the question of animal protection. Those laws include the Ordinance of Tort
which includes
damages caused by animals (Sec. 40) The Public Health Act (The Animal
Disease Ordinance
(New Version) 1985; Business Licensing Act (Sanitary Requirements for
selling food) 1973;
Rabies Act (1934).
33. See e.g. Approvazione del regolamento per vigilanza sanitaria della
carni, regio decreto
20 dicembre 1928, n. 3298.
34. T. Ercoli, “La Macellazione,” in Per un Codice degli Animali: Commenti
sulla
Normativa Vigente 199, 200 (Anna Mannucci & Mariachiara Tallachini eds.,
Giuffrè 2001).
35. Cf. Tom Regan, The Case for Animal Rights 355 (U. Cal. Press 1983)
[hereinafter Regan,
The Case for Animal Rights].
36. Singer, Animal Liberation, supra n. 7. Regarding the question of farm
animals, see also
Peter Singer, Ethics Beyond Species and Beyond Instincts: A Response to
Richard Posner, in
Animal Rights: Current Debates and New Directions 78 (Cass R. Sunstein &
Martha C.
Nussbaum eds., Oxford U. Press 2004); David J. Wolfson & Mariann Sullivan,
Foxes in the Hen
House, in Animal Rights: Current Debates and New Directions, id. at 205,
212.
37. See Regan, The Case for Animal Rights, supra n. 35, at 97 (expressing a
similar view).
38. See Council Directive 1999/74/EC, Laying Down Minimum Standards for the
Protection of Laying Hens, 1999 O.J. (L. 203) 53 (EC) (concerning battery
hens, defining the rules for
appropriate living space for each hen, separation between rows, and
appropriate flooring).
Similarly, with regard to pigs, rules were set out about the requirements of
illumination,
ventilation, sanitary conditions and abuse of the animals. See Council
Directive 1991/630/EEC,
Laying Down Minimum Standards for the Protection of Pigs, O.J. (L. 340) 33
(EEC) (amended by
Commission Directive 2001/93/EC, 2001 O.J. (L. 316) 36 (EC)).
39. Radford, supra n. 25, at 264 ff. The Farm Animal Welfare Council in
Britain set out
these principles in the form of “five freedoms” (on the model of the four
freedoms of the Rome
Convention 1957): the freedom from hunger and thirst; the freedom from
discomfort; freedom
from pain, injury and disease; freedom to express normal behavior; and the
freedom from fear and
distress.
40. Animal Welfare in Europe, supra n. 31, at 11.
41. Brooman & Legge, supra n. 26, at 190.
42. See HCJ 9232/91 “Noah” (Israeli Federation of Animal Protection
Organizations) v.
Atty. Gen., IsrSC 57(6)212 (Aug. 11, 2003) (providing a comparative
discourse); see also Animal
Welfare in Europe, supra n. 31, at 3 ff.
43. Andrew N. Rowan et al., Farm Animal Welfare: The Focus of Animal
Protection in the
USA in the 21st Century 46 (Tufts Ctr. Animals Pub. Policy 1999).
44. See Radford, supra n. 25, at 272 (explaining the distinction between
animal pain and
suffering).
45. We shall see below that, according to numerous learned opinions, kosher
slaughtering
does not cause more suffering than any other method. See infra Sec. V.
46. Sometimes it is questionable whether the transportation of poultry in
harsh conditions
does not render them unfit for kosher slaughter.
47. We chose to omit the discussion about the meaning of the term
“religion.” See Wolfgang
Schluchter, The Future of Religion, in Culture and Society: Contemporary
Debates 249, 249-250
(Jeffrey C. Alexander & Steven Seidman eds., Cambridge U. Press 1990).
48. See Paul Waldau, Religion and Animals, in In Defense of Animals: The
Second Wave 69,
77 (Peter Singer ed., Blackwell Publg. 2006).
49. Deut 12:21. Rashi explains “and thou shalt kill . . . as I have
commanded thee”—“We
learn from here that the mode of killing is prescribed; they are the laws of
slaughtering as they
were told to Moses on Sinai.” Rashi, supra n. 11, at vol. 5, 68. Maimonides
indeed lists the laws
50. BT Chullin (passim); R. Josef Caro, Shulhan Arukh (passim); R. Josef
Caro, Yore Deah
(passim). Perhaps this is the reason that particularly in non-Jewish
circles, it is argued that the
Jewish law does not oppose stunning. This interpretation of Jewish law,
which ignores the
Talmud, is clearly mistaken.
51. Id.
52. See e.g. Sefer Hahinukh Precept 451.
And slaughtering has to be performed at the throat, with a knife that has
been examined,
in order to spare the animal from suffering, because Scripture permitted man
to eat
animals and use them for his needs, but not to impose upon them unnecessary
suffering.
Cruelty to animals was extensively discussed by the Sages of the Talmud, who
concluded that it
was a Scriptural prohibition. BT Baba Metzia 32b; BT Sabbath 128.
53. Maimonides, The Guide for the Perplexed, supra n. 18, at 311; Schochet,
supra n. 20, at
162.
54. Maimonides, The Guide for the Perplexed, supra n. 18, at 371; cf. Ramdan
(Nachmanides), Commentary on the Torah: Deuteronomy Det. 12:21:
[A]s I have commanded thee—The Sages say that this teaches us that Moses had
been
told that slaughtering was to be performed by cutting the esophagus and the
wind-pipe
(or at least most of them) for cattle and one of them for fowl. Indeed, the
word
“Shechita” in Hebrew denotes the cutting of these two organs. Do not be
misled by “He
had slaughtered them in the wilderness” (Num 14:17). It is a mere figure of
speech
meaning that He had slain them like sheep. The commandments concerning the
sacrifices use the terminology of “slaughter” i.e., cutting the organs at
the throat. At
first, He commanded them that all meat to be eaten should bear the quality
of perfection
of the sacrifices, and the animals killed according to the procedures of the
sacrifices.
This is the plain meaning of Scripture. It may well be that the Sages meant
to say this
(Sifre Reeh 39)—as I commanded thee—both sacrificial and other animals must
be
killed by shechita.
For an English version of Nachaminides’ work, see Nachamanides, Commentary
on the Torah:
Deuteronomy 150 (Rabbi C. Chavel trans., Shilo Publg. House 1976).
55. See Curnutt, supra n. 29, at 180.
56. That is, instructions by the prophet Mohammed.
57. That is, religious tradition.
58. That is, a Summary of Islamic learning.
59. See infra Sec. V(A)(2).
60. B. Cottier & S. Aldeeb, Avis sur l`Étourdissement des animaux avant leur
abattage,
Institut Suisse de droit comparé 4 (Lausanne 2001). This is the method known
as “reversible
electric stunning,” from which the animal could potentially recover.
According to Shimrit Golan,
in Sweden this method is accepted by the majority of Muslims, although not
by orthodox Jews.
Shimrit Golan, Current Challenges for Religious Freedom in Europe: The Case
of Ritual
Slaughter of Animals 22 (Working Paper 47/2005, Hebrew U. Jerusalem, July
2005).
61. W.A. Shadid & P.S. van Koningsveld, Legal Adjustment for Religious
Minorities: The
Case of Ritual Slaughtering, in Islam in Dutch Society: Current Developments
and Future
Prospects 2, 13 (W.A.R. Shadid & P.S. van Koningsveld eds., Kok Pharos
Publg. H. 1992). It is
nevertheless important to point out that if the animal’s death is caused by
the electrical shock
before having been duly slaughtered, the meat is banned for consumption.
Sometimes this part of
the opinion has been omitted to show a liberal approach of Islam toward
ritual slaughtering, an
approach that runs counter to the view of all those who want to stick to the
religion provisions. Id.
62. Id.
63. See Patrizia Conforti, Religion et Loi: L`Abattage Rituel sans
etourdissment restera
interdit en Suisse 1, 5,
http://www.religioscope.com/info/notes/2002_029_abattage_ch.htm (last
modified Mar. 18, 2002, accessed Dec. 31, 2006). See also text accompanying
nn. 200 ff, infra,
the decision of the German Constitutional Court about the Islamic community
in Hessen.
64. Id.
65. See Conforti, supra n. 63, at 4 (quoting Urs Peter Müller: “[Il] importe
peu de savoir si le
Talmud ou le Coran interdisent ou non les méthods d`abattage industrielles.
Juifs et musulmans
estiment que ces méthods sont incompatibles avec la practique de leur
religion, et c`est la seule
chose dont la loi doit tenir compte.”).
66. See infra Sec. IV.
67. Decree No. 80/-791 of Oct. 1, 1980 § 9, J. Officiel de la République
Française (J.O.)
(Official Gazette of France) (Fra.).
68. Macellazioni Rituali e Sofferenza Animale 14, 16 (Comitato Nazionale per
la Bioetica
2003) (available at
http://www.governo.it/bioetica/testi/macellazione190903.pdf). A law of June
20, 1980 permits religious slaughter for Jews and Muslims. Another law from
1927 requires that
animals should be killed by a swift and painless method: “usando apparecchi
esplodenti a
proiettile captivo, oppure la recisione del midollo allungato (enervazione)
ovvero altro sistema da
riconocersi odoneo dall`autoritá prefettizia, sentito il consiglio
provinciale di sanitá.” Id. at 21.
69. The matter was settled by an agreement between the Spanish authorities
and the Jewish
and Muslim communities in 1992. Decreto Real 53 15-2-1995.
70. Welfare of Animals (Slaughter or Killing) Regulations, S.I. 1995/731
(U.K.).
71. Slaughtering of Animals (Scotland), 1928, 18 & 19 Geo. 5, c. 29 (Eng.).
72. Tierschutzgesetz (Law for the Protection of Animals) § 4a 2 (2), July
24, 1972, BGBl. I
(Federal Law Gazette) at 1277 (Ger.). In the state of Saxony, Kosher
slaughtering had been
banned in 1892 but the law was rescinded in 1910. Cf. Michael L. Munk, Eli
Munk & I.M.
Levinger, Schechita: Religious and Historical Research on the Jewish Method
of Slaughter 17-26
(Inst. Adv. Jewish Scholarship 1976).
73. 1920 Livestock Act, § 74.
74. Law about Animals 1971, § 11, Säädoskokoelma (SDK)/Förfatningssamling
(FörfS)
333/1971. There is an exception on the island of Aland, where stunning is
compulsory. See
Macellazioni Rituali, supra n. 68, at 30.
75. See P. Garde, Die Religionsfreiheit in den Skandinavischen Landern, 47
Zeitschrift fur
Evangelisches Kirchenrecht 315, 330 (2002). Danish law requires stunning
immediately
following the incision. This method may serve as an alternative for the
integration between the
swift cessation of pain and religious freedom (because perhaps such stunning
is not against the
Halakhah) and it might well be adopted by other countries.
76. European Convention for the Protection of Animals for Slaughter § 17
(1), 1988 O.J. L.
(137) 27 (authorizing contractual parties to derogate provisions as to prior
stunning in case of
slaughtering in accordance with religious rituals).
77. Council Directive 1993/119/EC, Protection of Animals at the Time of
Slaughter or
Killing, 1993 O.J. (L. 340) 21 (EC) (replacing Council Directive
1974/577/EEC, On the Stunning
of Animals Before Slaughter, 1974 O.J. (L. 316) 10 (EEC)).
78. See Council Directive 1993/119/EEC § 5(2).
79. 7 U.S.C. § 1901 et. seq. (2000) (enacted as Humane Methods of Slaughter
Act of 1958,
72 Stat. 862 (1958)). This law was passed much later than in most European
states. See Curnutt,
supra n. 29, at 169.
80. 7 U.S.C. § 1902(a) (requiring the stunning requirement only for
livestock, not poultry).
Some states e.g., California, have special legislation on this matter. Cf.
Rowan et al., supra n. 43,
at 59; Farm Sanctuary, Inc. v. Dept. of Food & Agric., 63 Cal. App. 4th 495,
508 (Cal. App. 2d
Dist. 1998).
81. 7 U.S.C. § 1902(b); see also Jones v. Butz, 374 F. Supp. 1284 (S.D.N.Y.
1974); infra Sec.
V(A) (discussing the definition and usage of “humane”).
82. Perhaps the American approach to religious methods is due to the
separation between
religion and state, and a completely different view of farm animals.
83. Cf. Farm Sanctuary, Inc., 63 Cal App. 4th at 508.
84. In fact, the absence of licensing and supervision create the problems
for groups without a
permit. See infra Sec. IV(B).
85. See Radford, supra n. 25, at 339.
86. See Garde, supra n. 75, at 47; Comitato Nazionale per la Bioetica,
Macellazioni Rituali e
Sofferenza Animale. (Documento approvato nella Seduta Plenaria del 19
settembre 2003).
87. See Decreto legislativo 333/1998, 1 settembre 1998 n. 333: “Attuazione
della direttiva
93/119/CE relativa alla protezione degli animali durante la macellazione o
l’abbattimento,”
pubblicato nella Gazzetta ufficiale n. 226 del 28 settembre 1998,
http://testo.camera.it/parlam/leggi/deleghe/testi/98333dl.htm (accessed Feb.
2, 2007). In Denmark
too, a distinction is made between cattle and poultry, the killing of which
does not require licensed
premises.
88. Animal Welfare Act, Pub. Act No. 8485, § 6(1) (Phil. 1998).
89. See Wolfson & Sullivan, supra n. 36, at 212.
90. K.H. Kastner, Das tierschutzrechtliche Verbot des Schechtens aus der
Sicht des
Bundesverfassungsgerichts, 57 JuristenZeitung 491, 492 (2002).
91. See Schochet, supra n. 20, at 283.
92. Dany Rothschild, Das Schächverbot der Schweizerischen Bundesverfassung
59
(Buchdruckerei M. Lande 1955); Munk et al., supra n. 72, at 16.
93. See Conforti, supra n. 63, at 1.
94. Golan, Current Challenges, supra n. 60, at 20; Macellazioni rituali,
supra n. 68, at 25.
95. See Macellazioni rituali, supra n. 68, at 11.
96. The European Parliament has repeatedly called for banning ritual
slaughtering. See
Golan, supra n. 60, at 58.
97. Brian Carnell, UK Proposes Banning of Halal & Kosher Slaughter,
http://www.animalrights.net/archives/year/2003/000246.htlm (June 29, 2003)
(accessed Aug. 23,
2006).
98. The first part of the Rocella report (4-11) discusses the issue and sets
out the conclusions.
The Appendices (12-80) deal with various aspects of the problem and are
mainly concerned with
Judaism and Islam.
99. See Cottier & Aldeeb, supra n. 60. This opinion is based on the premise
that slaughtering
without stunning is not obligatory for Jews or Muslims. The opinion is given
on the basis of a
particular religious interpretations given by the authors of the opinion and
not by religious
authorities. This approach reminds us of periods of intolerance when
religious interpretations
given by the State replaced religious opinions. This was, for example, the
way of the Emperor
Justinianus (Codex 1.9.8; Novella 146). See Alfredo Mordechai Rabello,
Giustiniano, Ebrei e
Samaritani v. 2, 814 ff. (Milano 1979).
100. Macellazioni rituali, supra n. 68, at 7.
101. Id.
102. Id. This question should be understood as part of the question of
multiculturalism.
103. But see supra n. 61.
104. See nn. 200 ff & accompanying text.
105. Cf. Brian Barry, Culture and Equality: An Egalitarian Critique of
Multiculturism 303
(Harv. U. Press 2001) [hereinafter Barry, Culture and Equality].
106. See e.g. Barry, Culture and Equality, supra n. 105, at 44. For
religious freedom and
Article 9 of the European Convention on Human Rights, see Malcolm D. Evans,
Religious Liberty
and International Law in Europe 281 (Cambridge U. Press 1997); Carolyn
Evans, Freedom of
Religion Under the European Convention 67 (Oxford U. Press 2001); Peter
Cumper, The Public
Manifestation of Religion or Belief: Challenges for a Multi-Faith Society in
the Twenty-first
Century, in Law and Religion: Current Legal Issues 2001 vol. 4, 311 (Richard
O’Dair & Andrew
Lewis eds., Oxford U. Press 2001); see also Alenka Kuhelj, Religious Freedom
in European
Democracies, 20 Tulane European Civ. L. Forum 1, 2 (2005).
107. In our view secularism should not be tantamount to religious
intolerance. True
secularism should be accompanied by admission that people are free to
practice their religion,
ensuring the right to be different.

108. See e.g. Fed. Const. of the Swiss Confederation art. 8(2) (Switz. Apr.
18, 1999); Const. of
the Italian Republic art. 8(1) (Ital. Dec. 22, 1947); Basic Law for the
Federal Republic of
Germany (Const.) art. 4(1) (Ger. Oct. 3, 1990); Const. of Spain art. 16(1)
(Spain Dec. 29, 1978).
109. Blackstone`s International Human Rights Documents 51 (P. Ghandi ed.
1995).
110. Javier Martinez-Torrón, The European Court of Human Rights and
Religion, in Law and
Religion: Current Legal Issues 2001, supra n. 106, at 185.
111. See C. Evans, supra n. 106, at 103; see also Cha ̀are Shalom Ve Tsedek
v. France (GC),
no. 27417/95, §§ 59, 74, ECHR 2000-VII (available at
http://cmiskp.echr.coe.int/
tkp197/search.asp?skin=hudoc-en) (enter case name under Case Title on HUDOC
search page).
112. Radford, supra n. 25, at 117. The Farm Animal Welfare Council in
England, a
protagonist for the rights of farm animals, proposed to ban religious
slaughter because it is not
performed by stunning but this proposition has not been accepted because the
law “recognizes a
fundamental matter of religious belief to communities that are an important
part of national life.”
Id. at 339; see infra Sec. V(A)(1).
113. Barry, Culture and Equality, supra n. 105, at 44; see infra Sec. VI
(regarding the
importing of kosher meat).
114. See Macellazioni rituali, supra n. 68, at 6.
115. See e.g. Basic Law for the Federal Republic of Germany (Const.) art.
20(A) (defining
responsibility of the state to protect national resources and animals). It
could be argued, though,
that the law was intended in the ecological sense, and does not refer to
animal abuse.
116. It is arguable that the exclusive consideration of religious freedom
might lead to extreme
situations, such as sacrificing animals by adherents of various cults. It
might raise numerous
questions by animal protectionists and be regarded as so-called
“speciesism”—i.e., discrimination
on the basis of belonging to different species, analogous to racism which
discriminates between
people of different races or nationalities. We do not examine this topic in
this article.
117. Of course, it is possible to claim that precisely to support the
secular character of the
French state, it is necessary to prohibit ritual slaughtering. See
Christophe Marie, Fondation
Brigitte Bardot, Ritual Animal Slaughtering,
http://www.fondationbrigittebardot.fr/
site/fbb_a.php?IdPere=199&Id=199 (accessed Oct. 23, 2006). As we have
pointed out, we should
understand that secularism should leave room for religious tolerance. Supra
Sec. III(A).
118. Cf. Garde, supra n. 75, at 329.

119. René Descartes, Discours de la méthode: suivi de La dioptrique 124
(Frédéric de Buzon
ed., Gallimard 1991). Voltaire (1694-1778) answered very harshly to this
claim: “Answer me,
machinist, has nature arranged all the means of feeling in this animal, so
it may not feel?”
Voltaire, A Reply to Descartes, in Animal Rights and Human Obligations 20,
21 (Tom Regan &
Peter Singer eds., Prentice Hall 1989).
120. See e.g. Brooman & Legge, supra n. 26, at 8-9.
121. See Gary L. Francione, Animals: Property or Persons, in Animal Rights:
Current Debates
and New Directions, supra n. 36, at 108, 108-115.
122. Immanuel Kant, Lectures on Ethics 239 (Louis Infield trans., Harper &
Row 1963); but
see Tom Regan, Defending Animal Rights 12 (U. Ill. Press 2001) [hereinafter
Regan, Defending
Animal Rights] (critizing Decartes’ position); Regan, The Case for Animal
Rights, supra n. 35, at
174. Kant recognizes that man has an indirect obligation not to be cruel to
animals. His opinion
is vulnerable to criticism on the basis that animals do not exist to fulfill
the needs of man but exist
by their own right. Levy & Levy, supra n. 7, at 42. The Kantian attitude
dominates, to a certain
extent, the debate on the status of animals. See generally infra Sec. V(B).
123. Jeremy Bentham, An Introduction to the Principles of Morals and
Legislation 310
(Oxford U. Press 1970). Bentham recognized that different species merit
equal treatment. His
opinion about animals is well known:
The day may come when the rest of the animal creations may acquire those
rights which
never could have been withheld from them by the hand of tyranny. The French
have
already discovered that the blackness of the skin is no reason why a human
being should
be abandoned without redress to the caprice of the tormentor. It may one day
come to be
recognized that the number of legs, the villosity of the skin or the
termination of sacrum
are reasons equally insufficient for abandoning a sensitive being to the
same fate. [T]he
question is not Can they reason? nor “Can they talk?” but, “Can they
suffer?”
Id.
124. Singer, Animal Liberation, supra n. 7, at 5 ff. See also Peter Singer,
Ethics into Action:
Henry Spira and the Animal Rights Movement 45 ff. (Rowman & Littlefield
2000) [hereinafter
Singer, Ethics into Action]. Singer is a supporter of utilitarianism, but on
the basis of equality.
Speaking in terms of utilitarianism may be too sweeping because
utilitarianism includes various
concepts and could be used in different contexts. See Brooman & Legge, supra
n. 26, at 91-95
(discussing utilitarianism with regard to animals); Regan, Defending Animal
Rights, supra n. 122,
at 13 (criticizing utilitarianism in the context of animal rights); see e.g.
Bentham, supra n. 123, at
310; David Lyons, Utility and Rights, in Readings in the Philosophy of Law
243 (Jules L.
Coleman ed., Garland Publg. 1999); Anthony Quinton, Utilitarian Ethics 1-10
(St. Martin’s Press
1973); see also Joan Dunayer, Speciesisim (Ryce Publg. 2004); Levy & Levy,
supra n. 7, at 172.
125. That is considered discriminating between a human and non-human animals
on the
ground they belong to different species. Singer, Animal Liberation, supra n.
7, at 213; see also
Paola Cavalieri, The Animal Question: Why Nonhuman Animals Deserve Human
Rights 69
(Catherine Woollard trans., Oxford U. Press 2001).
126. See e.g. Regan, The Case for Animal Rights, supra n. 35. It is
noteworthy to point out
that Rabbi I.A. Kook explicitly refers to “the rights of animals,” e.g., in
his Talmudic
Commentary. Ein Haia, Shabbat, vol. a, 109 (Jerusalem 1994).
127. Regan, The Case for Animal Rights, supra n. 35, at xvii, xxii. His
ideas have been
harshly criticized. See id. at preface; see also Carl Wellman, The
Proliferation of Rights: Moral
Progress or Empty Rhetoric? 108 (Westview Press 1999).
128. See e.g. Gary L. Francione, Animals, Property, and the Law 12 (Temple
U. Press 1995)
[hereinafter Francione, Animals, Property, and the Law] (proposing that we
should not relate to
animals in terms of property).
129. But see David Favre, Equitable Self-Ownership for Animals, 50 Duke L.J.
473, 476
(2000).
130. See e.g. Joseph Raz, The Morality of Freedom 176 (Oxford U. Press 1988)
[hereinafter
Raz, The Morality of Freedom]. According to Raz, rights are based on the
principle of
reciprocity. Animals cannot have rights because they cannot claim rights.
Furthermore, how can
we maintain that animals have rights if they are the property of man and
subject to his will (with
certain limitations)? If so, is not man obliged to honor those belonging to
different referential
groups? And what are the boundaries of “the same moral community?” This does
not mean that
man’s sentiments toward animals should not be taken into consideration.
Incidentally Raz compares the feelings of man towards animals to his own
sentiments towards objects d’art in his
possession. Id. at 179; cf. Alan White, Why Animals Cannot Have Rights, in
Animal Rights and
Human Obligations 119, 120-121 (Tom Regan & Peter Singer eds., 2d ed.,
Prentice Hall 1989).
131. Person A can only claim rights from B if A has the choice to demand a
certain conduct
from B and is in a position to enforce it. According to this criterion,
animals cannot be regarded
as having rights because they do not have the choice to implement their
rights. Only humans can.
This approach does not explain why people with handicaps, who cannot claim
their rights are
nevertheless regarded as having rights. Cf. L.W. Sumner, The Moral
Foundation of Rights 46,
203-204 (Oxford U. Press 1989).
132. For example no one would argue that animals have a right to education
or citizenship.
133. See Alan Gewirth, Are there Absolute Rights?, in Theories of Rights 91
(Jeremy Waldron
ed., Oxford U. Press 1984).
134. Cf. A. Sohm-Bourgeois, La personification de l’animal: une tentation à
repousser, Dalloz
Chronique 33-37 (1990).
135. Some theorists try to avoid the problem of comparing humans to animals
by using the
word “interests” instead of “rights” to describe what animals should be
legally entitled to, but this
is purely a matter of semantics. See Joel Feinberg, Harm to Others 58, 70
(Oxford U. Press 1984)
(concerning animals “interests”).
136. See Margaret Mc Donald, Natural Rights, in Theories of Rights, supra n.
133, at 21;
Joseph Raz, The Authority of Law passim (Oxford U. Press 1979).
137. Where utilitarianism fails to provide for concern and respect for
persons, rights become
necessary. See e.g. Ronald Dworkin, Rights as Trumps, in Theories of Rights,
supra n. 133, at
153; Ronald Dworkin, Taking Rights Seriously xi (Harv. U. Press 1977)
[hereinafter Dworkin,
Taking Rights Seriously]; see also Francione, Animals, Property, and the
Law, supra n. 128, at
103. The idea of rights as trumps has generated critics. See e.g. Dworkin,
Taking Rights
Seriously, at 365 (providing a response to Prof. Joseph Raz); see also
Jeremy Waldron, Pildes on
Dworkin`s Theory of Rights, 29 J. Leg. Stud. 301, 303 (2000).
138. Raz, The Morality of Freedom, supra n. 130, at 177; see e.g. J.W.
Harris, Legal
Philosophies 83 (Butterworth & Co. 1997) (providing criticism about the
difficulty of defining
legal relationships in terms of obligations and rights); Wesley Newcomb
Hohfeld, Fundamental
Legal Conceptions: As Applied in Judicial Reasoning and Other Legal Essays
11 ff. (David
Campbell & Philip Thomas eds., Ashgate 2001) (concerning the
rights-obligations relationship).
139. This argument is based on the view that the issue of cruelty to animals
concerns the
protection of human feelings, not the enforcement of an ethical norm. See
Avinoam Ben-Zèev,
The Reason for the Prohibition on Abusing Crocodiles, 4 Mishpat Umimshal 763
(1998)
(Hebrew) (arguing that the rationale for prohibiting animal abuse is
emotional rather than ethical);
Yossi Wolfson, The Moral and Legal Status of Nonhuman Animals, 5 Mishpat
Umimshal 551
(2000) (Hebrew) (commenting on Zèev’s view).
140. See e.g. Barry, Culture and Equality, supra n. 105, at 131 (suggesting
it is easier to accept
the idea of tolerance than to come to terms with its interpretation).
141. The case of bull fighting is justified in countries like Spain on the
ground that it is part of
a national tradition, indeed sometimes understood as ritual practice. There
is, of course, a
distinction in that the discussion on ritual slaughtering is not as much
about the practice,
(slaughtering) as about the particular method. In the countries condoning
bull fighting, the very
practice is at stake.
142. We can point out the position of Rabbi Ovadia Yoseph who argues that
this practice is
prohibited according to Jewish law. See Eshkoli, supra n. 15, at 209.
143. Although protection is needed for religious sentiments, the freedom of
religion or
freedom from religion are universal values, as we shall see below.
144. See Macellazioni rituali, supra n. 68, at 4.
145. Will Kymlicka, Politics in the Vernacular: Nationalism,
Multiculturalism and Citizenship
210 (Oxford U. Press 2001).
146. See e.g. Sally Engle Merry, Changing Rights, Changing Culture, in
Culture and Rights:
Anthropological Perspectives 31, 38 (Jane K. Cowan, Marie-Benedicte Dembour
& Richard A.
Wilson eds., Cambridge U. Press 2002).
147. Barry, Culture and Equality, supra n. 105, at 33.
148. See e.g. Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity
and Political
Theory 196, 264 ff. (2d ed., Palgrave Macmillan 2006) (concerning
multiculturalism); Ayelet
Shachar, Two Critiques of Multiculturalism, 23 Cardozo L. Rev. 253 (2001);
Yael Tamir, Two
Concepts of Multiculturalism, in Multiculturalism in a Democratic and Jewish
State: The Ariel
Rozen Zvi Memorial Book 79 (Menachem Mautner, Abraham Sagi & Ronen Shamir
eds.,
Universitat Tel Aviv 1998) (Hebrew).
149. For example, in certain countries, Sikhs riding motorcycles are
exempted from wearing
crash helmets because they wear turbans. Jacob T. Levy, The Multiculturalism
of Fear 125-127
(Oxford U. Press 2000); see also Kymlicka, supra n. 145, at 163 (listing
various adjustments);
Tina S. Boradiansky, Student Author, Conflicting Values: the Religious
Killing of Federally
Protected Wildlife, 30 Natural Resources J. 709, 727 (1990) (regarding the
problems of
accomodation in the conflict between defense of wildlife and Indian
religious practices). We
might also cite the permission for the church to produce wine during
Prohibition in the U.S.,
permission for Jews to work on Sundays though it is a day of rest for
non-Jews, etc. Cf. J. Levy,
id. at 127.
150. See e.g. Jones, 374 F. Supp. 1284 (discussing accommodations of
religious practices by
granting exemption from statutory obligations).
151. Carl Cohen & Tom Regan, The Animal Rights Debate 3 (Rowman &
Littlefield
Publishers 2001).
152. According to Jewish tradition, this practice stems from the times of
Noah—after the
deluge. See supra nn. 11 & 12.
153. Of course, it can be argued that, without the need for meat, the great
majority of animals
raised today for food would not exist at all, because they wouldn’t have
been needed. From the
point of view of species survival, it could be argued that domesticated
animals are a biological
success because they survived in greater numbers than wild species. Humans
have a vested
interest in cattle and poultry and promote their proliferation by methods
which are not always
acceptable. Whether bringing a living thing into the world also gives the
right to put it to death is
a complex issue outside the scope of this discussion.
154. See Jones, 374 F. Supp. 1284 (holding that there was no fault in the
use of kosher meat
permitted by U.S. law); see e.g. Pamela D. Frasch et al., Animal Law 403
(Carolina Academic
Press 2000) (explaining that, as in other cases, this decision was based on
the principle of religious
freedom, ignoring the aspect of cruelty to animals).
155. See e.g. A.I. Kook, Telalei Oroth, in Mamarè Harayah 26 ff. (Jerusalem
5744) (Hebrew)
[hereinafter Kook, Telalei Oroth] (essay on vegetarianism). See text
accompanying infra nn. 233-
235 (discussing the opinion of Rabbi A.I. Kook).
156. See Abraham Isaac Kook, Abraham Isaac Kook: The Lights of Penitence,
the Moral
Principles, Lights of Holiness, Essays, Letters, and Poems 316 (Ben Zion
Bokser trans., Paulist
Press 1978).
157. Barry, Culture and Equality, supra n. 105, at 296.
158. For some observant Jews, eating meat should be understood as an
obligation on Shabbat
and Holidays.
159. See Barry, Culture and Equality, supra n. 105, at 35, 40.
160. Cf. Dworkin, Taking Rights Seriously, supra n. 137, at 205 (“The
institution of rights is
therefore crucial because it represents the majority promise to the
minorities that their dignity and
equality will be respected.”).
161. Barry, Culture and Equality, supra n. 105, at 41.
162. It is sufficient to mention certain cults performing unusual actions,
including cruel torture
of pets.
163. See Barry, Culture and Equality, supra n. 105, at 133.
164. The problem here is not the permission for whaling, but the cruel
methods used by the
aboriginals. See id. at 254.
165. HCJ 9232/91, Noah (Israeli Assn. to Protect Animals) v. Atty. Gen., at
IsrSC 57(6)212
(2003) (banning the practice of force-feeding geese).
166. See e.g. European Convention on Human Rights art. 9(1), 14
(distinguishing between
freedom of religion and freedom from discrimination). Indeed, there are
cases in which the
freedom of religion is impaired and it is not deemed discrimination, for
example, if the prohibition
of displaying religious expressions was applied to the entire population.
See e.g. Political
Constitution of the United States of Mexico art. 3(IV) (Mex. Feb. 5, 1917).
167. E.g. Nahrstedt v. Lakeside Condo. Assn., 878 P.2d. 1275, 1290 (Cal.
1994); Young v.
Savinon, 492 A.2d. 385, 389 (N.J. Super. App. Div. 1985).
168. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 158-159 (1978).
169. See Golan, supra n. 60, at 14 (arguing that the prohibition in
Switzerland had anti-Semite
roots). The prohibition began with the emigration of Jews to Switzerland
from Czarist Russia.
See also Pascal Krauthammer, Das Schächtverbot in der Schweiz, 1854-2000:
die Schächfrage
zwischen Tierschutz, Politik und Fremdenfeindlichkeit 253 (Schulthess 2000).
170. This is the opinion expressed in the report of the Swiss Institute of
Comparative Law.
See Cottier & Aldeeb, supra n. 60, at 11.
171. Dr. Zerach Warhaftig, The Historical and Legal Battle over Jewish
Shechita, 52 Sinai 195
ff. (5723) (Hebrew) (our citations are from
http://www.daat.ac.il/daat/kitveyet/ sinay/hamavak-
4.htm); see also B. Nahmani, The Battle against the Jewish Schechita
(Hebrew),
http://www.daat.ac.il/daat/kitveyet/mahanaim/hamaavak.htm (accessed Feb. 6,
2007); see also
Krauthammer, supra n. 169, at 153.
172. It is interesting to note that the liberal Italian newspaper La Stampa
also found a
connection between the prohibition and antisemitism. The newspaper points
out that one of
Hitler’s first acts after he took power on Jan. 30, 1933, was to prohibit
Jewish shechita as early as
Apr. 21 of the same year. La Stampa (Italy), Cronologia dell'Olocausto
(Chronology of the
Holocaust),
http://www.lastampa.it/_web/_SERVIZI/speciali/GiornoMemoria/cronologia.asp
(accessed Jan. 12, 2007).
173. Warhaftig, supra n. 171 (passim). This was the case also for my late
grandfather, Prof.
Alfredo Michael Rabello (A.M.R.).
174. Rabbi B.Z. Uziel, Sefer Mishpete Uziel (Responsa), vol. 1, Yore Deah, ¶
a (Yerushalayim
1997) (Hebrew) (Responsa). This Responsum is presented (in Hebrew) in the
Bar Ilan University
Responsa Project CD; see infra n. 176.
175. B. 1885 Russia d. 1966 Switzerland.
176. Rabbi J.J. Weinberg, Seride Esh: sheelot uteshuvot, (Responsa) edited
by A.A. Weingorth
& Sh.A. Hacohen Rapoport, (Havaad lehozaat kitve hagaon harav J.J.
Weinberg), Jerusalem,
1999, Part II # 4 App. 3 Ltr. 12 (# b), 199. The subject of this Responsum
is himum habeemot al
iede chashmal (the stunment of animals by electricity). The authors obtained
this Responsum (in
Hebrew) in The Responsa Project of Bar-Ilan University, CD version 14+
(2006), s.v. Sheelot
utshuvot (Responsa) Seridei Esh. This project appears on the internet as The
Online Judaic
Responsa (Bar-Ilan University Responsa), http://www.responsa.co.il/
(accessed Feb. 7, 2007).
Seridei Esh appears in the online project as numbers 276-277,
http://www.biu.ac.il/JH/Responsa/CDI/bookse.htm#Responsa (accessed Feb. 7,
2007). The
Responsa Project CD is the source of the Hebrew text of all the Responsa
quoted in this article.
177. Weinberg, Seridei Esh: sheelot utshuvot, Part II # 4, himum habeemot al
iede chashmal
Prefation, p. 28 adds:
Devoted Jews would not listen to us, they would rather suffer and go hungry
than defile
themselves by eating beef slaughtered by the method prescribed by their evil
persecutors.
The foul tyrant, head of the Nazi regime and thousands more like him will
perish from
this world, but our holy religion will prevail forever. The Jews in Germany
must stand
this ordeal for our holy religion and for the sake of our brethren all over
the world. If—
God forbid—we rule to be lenient regarding this type of slaughter, we would
endanger
Jewish kosher slaughter all over the world. We have to show the world that
we are
prepared to suffer for our religion, and when our enemies see that the
prohibition of
kosher slaughter does not divert Israel from religion—perhaps they would let
it go.
178. Weinberg, Seridei Esh: sheelot utshuvot, Part II # 4, himum habeemot al
iede chashmal
Prefation, p. 28.
179. See e.g. Paul Valley, Muslims Unite with Jews to Defend Animal
Slaughter Rites;
Government Told to End Religious Exemption from Animal Welfare, The
Independent (London) 3
(June 11, 2003); BBC News World Edition (BBC June 10, 2003) (TV broadcast)
(text available at
http://news.bbc.co.uk/2/hi/uk_news/2977086.stm); Aisha Labi, A Stunning
Debate: A Proposal to
Ban Ritual Slaughter in the U.K. Forges an Unlikely Alliance of Muslims and
Jews,
http://www.time.com/time/europe/magazine/article/0,13005,901030623-458740,00.html
(accessed
Jan. 12, 2007).
180. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520
(1993); Curnutt, supra
n. 29, at 187.
181. Church of the Lukumi Babalu Aye, 508 U.S. at 525.
182. Id. at 526 (“[T]he City Council adopted Resolution 87-66, which noted
the ‘concern’
expressed by residents of the city ‘that certain religions may propose to
engage in practices which
are inconsistent with public morals, peace or safety.’”).
183. Id. at 527-528.
184. Incidentally, Justice Scalia commented that even if the ordinances only
intended to
protect animals, it was illegal. Id. at 559. Indeed, militant defense of
animals, even without
ulterior motives, could harm minorities.
185. See infra at text accompanying nn. 200 ff.
186. See Golan, supra n. 60, at 32.
187. Around 3,500,000 Muslims are living in Germany. See Euro-Islam.info,
Country
Profiles: Germany, http://www.euro-islam.info/pages/germany.html (accessed
Jan. 12, 2007).
The number of Jews is around 100,000.
188. Curnutt, supra n. 29, at 187; see David O’Brien, Animal Sacrifice and
Religious
Freedom: Church of the Lukumi Babalu Aye v. City of Hialeah 1-22 (U. Press
Kan. 2004)
(regarding the history and a detailed survey of the background).
189. We do not know of any other religion in Europe with problems regarding
the slaughtering
of animals for food. A similar problem concerns Confucianism but it is about
treatment of
animals after death. In any case, the question is of theoretical interest.
190. We have referred before to the leniency we find in certain non-European
legislation as to
tribal practice. This is the case of Filipino law. See supra n. 88.
Conversely, we can take the
example of Hinduism that, unlike other faiths, considers the cow a sacred
animal. We certainly do
not expect a uniformity of religious attitude to animals, but this does not
mean that it is necessary
to abandon improvements in the situation of animals throughout the world and
avoid cruelty.
191. Brigitte Basdevant-Gaudemet, The Legal Status of Islam in France, in
Islam and
European Legal Systems 97, 114 (Silvio Ferrari & Anthony Bradney eds.,
Ashgate 2000).
192. See Cha ̀are Shalom ve Tsedek, 27417/95 at ¶ 2.
193. Id. at ¶ 35-36.
194. Id. at ¶ 69 (stating that one of the two reasons on which the
government based its denial
was that Sha’arei Shalom had about 40,000 adherents compared to 700,000 for
ACIP).
195. See infra Sec. VI (regarding the issue of imported meat).
196. See T. Jeremy Gunn, Adjudicating Rights of Conscience under the
European Convention
of Human Rights, in Religious Human Rights in Global Perspective: Legal
Perspectives 305-330
(Johan D. van der Vyver & John Witte, Jr. eds., Martinus Nijhoff Publishers
1996) (regarding the
limitations of the Court of Human Rights to administer problems concerning
freedom of religion
and conscience).
197. See e.g. Marie-Benedicte Dembour, Following the Movement of a Pendulum:
Between
Universalism and Relativism, in Culture and Rights: Anthropological
Perspectives, supra n. 146,
at 74 (discussing the so-called margin of appreciation).
198. BverfG (Federal Constitutional Court), 1 BvR 1783/99 (Jan. 15, 2002);
JZ 10/2002, 500;
see Rico Faller, Staatsziel “Tierschutz”: vom parlamentarischen
Gesetzgebungsstaat zum
verfassungsgerichtlichen Jurisdiktionsstaat? 88 (Duncker & Humblot 2005);
Christine
Langenfeld, Germany, 1 Intl. J. Const. L. 141 (2003); Kate M. Nattrass, “ .
. . Und die Tiere”
Constitutional Protection for Germany’s Animals, 10 Animal L. 283, 291
(2004).
199. See supra Sec. II(A). It should be noted that University of Cairo is
not a Muslim
religious authority, and there were some misunderstanding as to the exact
meaning of this fatwa.
See supra n. 62 and accompanying text.
200. See e.g. Gerhard Robbers, The Legal Status of Islam in Germany, in
Islam and European
Legal Systems, supra n. 191, at 149.
201. The case concerned a Turkish resident without German citizenship.
202. In Germany, local arrangements have been in force for many years to
satisfy the needs of
Muslims, including importing halal meat.
203. Langenfeld, supra n. 198, at 144.
204. Cf. Kastner, supra n. 90, at 495.
205. See Basic Law for the Federal Republic of Germany (Const.) art. 20a.
206. Id. at Appendix (available at
www.iuscomp.org/gla/statutes/GG.htm#weimar) (accessed
Jan. 12, 2007).
207. Cf. Kymlicka, supra n. 145, at 22.
208. Bürgerliches Gesetzbuch (BGB) (Civil Code) § 90a: “Animals are not
things. They are
protected by special laws. The provisions dealing with things shall
analogously apply to them,
insofar as not yet otherwise provided.” See e.g. Rolf Steding, § 90a BGB:
nur juristische
Begriffskosmetik?—Reflexionen zur Stellung des Tieres im Recht, Jus 962
(1996).
209. See 7 U.S.C. §§ 1901-1907; Wolfson & Sullivan, supra n. 36, at 207; see
e.g. Animal
Welfare in Europe, supra n. 31, at 6; see also Elizabeth L. Decoux, In the
Valley of the Dry
Bones: Reuniting the Word “Standing” with its Meaning in Animals Cases, 29
Wm. & Mary
Envtl. L. & Policy Rev. 681, 682 (2005).
210. I.M. Levinger, Shechita in the Light of the Year 2000, at 12 (Maskil
L’David, Jerusalem
1995) (“The terms humane and slaughter represent a paradox. Slaughter cannot
be humane by
any method, for slaughter is cruel. And yet the slaughter of animals being a
necessity, must be
performed as humanely as possible.”); Munk et al., supra n. 72, at 107;
Rowan et al., supra n. 43,
at 18; see e.g. Abraham Isaac Kook, Hazon ha-tsimhonut veha-shalom:
mi-behinah Toranit: orot
meha-maamarim Afikim ba-Negev veTelalei Orot 8 (David Cohen ed.,
Yerushalayim 1960-61)
(Hebrew) [hereinafter Kook, Hazon ha-tsimhonut veha-shalom]: “It cannot be
conceived that the
merciful Maker of the universe prescribed an eternal rule in His goodly
works, which does not
enable mankind to exist without uprooting its morals by bloodshed, even the
blood of animals.”
Id.
211. In this context, it is interesting to note the Talmudic anecdote (BT
Baba Metzia 85a)
about R. Judah the Patriarch (editor of the Mishnah). The Talmud inquires
the reason for the
suffering which R. Judah has had to endure, and says that they had come and
gone as a result of
his conduct. “They came to him through a certain incident.” What is it?—A
calf was being taken
to the slaughter, when it broke away, hid his head under Rabbi’s skirts, and
lowed [in terror].
“Go,” said he, “for this were you created.” Thereupon they said [in Heaven],
“Since he has no
pity, let us bring suffering upon him.” “And [the suffering] departed
likewise.” How so?—One
day the Rabbi’s maidservant was sweeping the house; [seeing] some young
weasels lying there,
she made to sweep them away. “Let them be,” said he to her; “It is written,
and his tender mercies
are over all his works. Said they [in Heaven], “Since he is compassionate,
let us be compassionate
to him.” See e.g. Kook, Hazon ha-tsimhonut veha-shalom, supra n. 210, at 8.
212. Regan, The Case for Animal Rights, supra n. 35, at 330.
213. See Rowan et al., supra n. 43, at 10.
214. Of course scientific developments always involve ethical issues.
215. See Weinberg, supra n. 176, at vol 1; R. Z.P. Frank, Beinyan Girushin,
hagaalath
porcelain, vehimum leschechita Vayita Eshel 5750 # 543 (Hebrew); R. Yosef
Razin, Himum
Behemah Kodem Schechita, in Atereth Hakahamim 41-46 (Hebrew); R.H.
Grodzhinsky, Himum
Behemah Leachar Schechita, in Atereth Hakahamim 5697 47-48 [5743] (Hebrew);
R.Y.M.Schlesinger, Himum Behemah Lifnei Schechita, in Esh Tamid 5741-5744
[5749] (Hebrew); R.D.Z.
Hoffmann, Himum Behemah al yedei Shikrouth, in Hamaayan 34, 5754 9-20
(Hebrew); Eshkoli,
supra n. 15, at 607.
The works by Frank, Razin, Grodzhinsky, Schlesinger & Hoffman are quoted in
the
Bibliography of the Responsa Project of Bar-Ilan University. See supra n.
176.
216. See e.g. I.M. Levinger, Schechita in the Light of the Year 2000:
Critical Review of the
Scientific Aspects of Methods of Slaughter and Shechita 121-127 (Maskil
L’David 1995)
[hereinafter Levinger, Schechita in the Light of Year 2000] (discussing in
detail the various
methods of slaughter); L.S. Shore, The Scientific Approach to Resolving
Conflicts between
Veterinary Science and Schechita, 54 (1) Israel Journal of Veterinary
Medicine (1999) (available
at http://www.isrvma.org/article/54_1_4.htm).
217. Schochet, supra n. 20, at 284.
218. Riccardo Di Segni, Noten ta`am Le-shevah: tà ame ha-kashrut
be-farshanut ha-Yehudit
(The Jewish Interpretation of Dietary Laws) 43 (Lamed 1998) (Hebrew); see
also Riccardo Di
Segni, Macellazione rituale (Shechitah) Allegato 5, in Macellazioni Rituali,
supra n. 68, at 59 ff.
219. Authors’ interview with Dr. Zichron Chason, DVM, Denmark, (Apr. 12,
2005). In this interview Dr. Chason argues also that CO2 induced anesthesia
was preferable to electric stunning.
The efficiency of this method had been proven in killing pigs in Denmark;
but it was never used
for cows, perhaps due to technical difficulties. In any case, it has to be
ascertained that this
method was acceptable by Jewish law. Furthermore, the possibility of
acupuncture should be
investigated, because it significantly reduces pain for men and animals. Id.
220. Hakhamim, Yoré Deà § 1. This Responsum is presented (in Hebrew) in the
Bar Ilan
University Responsa Project CD; see supra n. 176. Ha-Levi was born in Yemen,
came to Israel in
1923, d. 1973.
221. The prohibition is reiterated by R.M. Roth: “To conclude, it is clear
from the halakhic
point of view that electric shocks render the animal treifa (unfit to eat)
and it is prohibited to use.
And observant Jews must not partake in it because it is an abomination.”
Responsa Kol Mevaser
Part I # 81 s. v. ulam; also R. I.J. Weiss (1902-89), Responsa Minhath
Itzhak Part II # 27. (This
Responsum is presented (in Hebrew) in Bar Ilan University Responsa Project
CD; see supra n.
176.):
[C]oncerning stunning before slaughter (a) it is not true that schechita is
a more painful
death than any other method, it has been ascertained by experts (b) and the
religious
prohibition of cruelty to animals does not apply at the time of death . . .
and Maimonides
and Nachmanides also state that schechita is the most merciful method . . .
.
These Responsa are presented (in Hebrew) in the Bar Ilan University Responsa
Project CD; see
supra n. 176.
222. Levinger, Schechita in the Light of the Year 2000, supra n. 216, at 20:
Today a method of slaughter is being sought which will, with certainty,
eliminate pain
perception in the animal and at the same time, ensure good exsanguination.
Schechita, if
it is correctly carried out without previous stunning, represents a method
which complies
with these postulates. Brain function is eliminated and ceases very rapidly,
whereas
heart function ceases only later, thus ensuring a high degree of
exsanguinations.
Id. at 128; see also I.M. Levinger, Haschechita veZa`ar Baalei Chaim,
especially the addendum at
175 (Jerusalem 2004) (Hebrew).
223. Barry, Culture and Equality, supra n. 105, at 42; see also id. at 296
(complaining that the
British government took into consideration the opinion of Jews and Muslims
since “these leaders
had an entrenched position based on religious belief and no credentials as
scientists.”).
224. See Department for Environment, Food, and Rural Affairs (DEFRA), FAWC
Report on
the Welfare of Farmed Animals at Slaughter or Killing-Part 1: Red Meat
Animals,
http://www.defra.gov.uk/animalh/welfare/farmed/final_response.pdf (accessed
Jan. 12, 2007).
225. All forms of exploitation are likely to raise ethical questions. See
e.g. Regan, The Case
for Animal Rights, supra n. 35, at 151.
226. Only human beings can be defined as moral agents, but this does not
exclude other
creatures from being moral patients. The inclusion of animals in the
category of moral patients
does not contradict slaughter because neither Judaism nor Islam negate a
moral viewpoint toward
animals. On the contrary, Scriptures command us to prevent abuse of animals.
227. The principal advocate of the idea that animals have a moral status is
Tom Regan.
Nevertheless, we are aware that important thinkers do not think that animals
are included in moral
considerations, and the obligation toward them is that of protecting the
feelings of others.
228. See supra Sec. II(A).
229. Professionalism plays an important role indeed in all aspects relating
to the treatment of
animals. And it is commonly accepted that treatment of the animals must be
in the hands of
highly skilled persons. For example, all animal experiments must be
supervised by a veterinarian.
Similarly, Jewish tradition stresses the professional character of the
slaughterer.
230. To be sure, the requirement of moral integrity applies to every
candidate for public office
in the Halakhah. Moreover the Jewish slaughterer must pass an exam every
year before the
rabbinical authority who approves his physical fitness to be a schochet.
231. Kook, Telalei Orot, supra n. 155, at 26 ff. Kook, Hazon ha-tsimhonut
veha-shalom,
supra n. 212. It should be remembered that the late Rabbi Shlomo Goren,
former Chief Rabbi of
Israel, was a strict vegetarian.
232. As it is commonly known, Jewish religion forbids the eating of blood.
One of the aims of
the shechita is to allow the draining of the blood. According to Dr. Chason,
Shechita facilitates
the important aim of exsanguinations. Interview with Dr. Chason, supra n.
219. Together with
the incision made at the throat, it is also necessary to sever the wind-pipe
esophagus and the vagus
nerve which ceases the functioning of the parasympathetic nervous system,
only the sympathetic
nervous system remains functioning, the heart-beat rate increases and the
blood leaves the body
before the heart stops beating. This results in maximum blood flow, and the
pain of the animal is
reduced to minimum. Exsanguination also prevents certain diseases contracted
from the animal
by man.
233. Kook, Telalei Orot, supra n. 155, at 27.
234. Singer, Animal Liberation, supra n. 7, at 8.
235. Cohen & Regan, supra n. 151, at 38-40 (arguing against bestowing rights
to animals and
advocating their use by humans).
236. Brian Barry, Theories of Justice 203 ff. (U. Cal. Press 1989);
Cavalieri, supra n. 125, at
89.
237. See e.g. Singer, Ethics into Action; supra n. 124, at 156, 158. See
also Singer, Animal
Liberation, supra n. 7, at 154.
238. For example, Swiss Law § 61(3) takes scientific progress into
consideration.
239. The application of the Halakhah should relate to changing
circumstances. E.g. Aviner,
supra n. 5, at 432; Rosenfeld, supra n. 5, at 258; Meisels, supra n. 5, at
366.
240. See e.g. Jones, 347 F. Supp. 1284. In this sense Jews and Muslims led
the way in animal
welfare. For example R. Saadiyah Gaon asserts that those merciful to animals
are rewarded by
Heaven. Emunoth Vedeoth Ch. V, cited in Levy & Levy, supra n. 7, at 65.
241. Masri, supra n. 22, at 86.
242. Waters v. People, 46 P. 112, 115 (Colo. 1896).
243. We have to note that people sometimes agree to donate organs or
volunteer for medical
experiments. Cf. Alfredo Mordechai Rabello, An Equitable Distribution of
Human Organs for
Transplantation (Hebrew U. Jerusalem 2003); Menachem Elon, Neshamah Yetherah
Bamishpat
(Additional Soul in Law: A Selection of the Writings of Justice Menachem
Elon) 134 ff. (Aviad
Hacohen ed., Mozaikah 2003) (Hebrew).
244. See Michael D. Bayles, Introduction, in Contemporary Utilitarianism 1
(Michael D.
Bayles ed., Anchor Books 1968) (“Utilitarianism is a normative theory of
ethics which, in the
most general terms, claims one ought to do those actions which produce good
or avoid evil for
everyone.”). In other words see also J.S. Mill, Utilitarianism, in Studies
in Utilitarianism 39, 44-
45 (Thomas K. Hearn, Jr. ed., Appleton-Century-Crofts 1971) (“Actions are
right in proportion as
they tend to produce happiness.”) Robert L. Arrington, Western Ethics: An
Historical
Introduction 318 (Malden 1988) (discussing the theories of Bentham and
Mill); J.J.C. Smart,
Extreme and Restricted Utilitarianism, 6 J. Phil. 344 (Oct. 1956).
245. This argument might be expressed as follows: “Kantianism for
people—utilitarianism for
animals.” In the opinion of Kant, only humans exist as an end in themselves
(independently of the
fact that we should treat animals with compassion). See e.g. Kant, supra n.
122, at 239; Allen
Wood, Humanity as End in Itself, in Kant’s Groundwork of the Metaphysics of
Morals: Critical
Essays 165, 171 (Paul Guyer ed., Rowman & Littlefield Publishers 1998);
Regan, The Case for
Animal Rights, supra n. 35, at 174. The utilitarian approach is advocated by
numerous authorities,
e.g., Prof. Nozick who is of the opinion that animal suffering is a question
of relative costs,
meaning that morally, animals should not be made to suffer, but if their
suffering is beneficial to
humans, then it may be permissible. Robert Nozick, Anarchy, State and Utopia
35, 39 (Basic
Books, Inc. 1974); see also P. Lerner, Reflections on Feeding Stray Cats, 9
Ha-Mishpat 407
(2004) (Hebrew).
246. This argument is far from satisfactory for animal protectionist
organizations.
247. See e.g. (Animal Welfare Act) § 7, May 25, 1998, BGBl. I (Federal Law
Gazette) at 1094
(Ger.).
248. These criteria were published by two British scientists, Russel and
Bursh in 1959. Since
then they have gained acceptance by most legal systems, in spite of the
differences between
various countries. See M. Salvi, Integrità e Valore Intrinseco negli
Animali—Il Caso olandese, in
Per un Codice degli Animali: Commenti sulla Normativa Vigente, supra n. 34,
at 210.
249. In the case of non-vegetarian people.
250. This argument would be made if it was proven that the suffering was
greater than in
slaughtering with stunning. As far as we know, this has not yet been proven
beyond doubt.
251. According to Singer, Rabbinical authorities in Sweden, Norway and
Switzerland
condoned stunning before slaughter. Singer, Animal Liberation, supra n. 7,
at 154. After the visit
of Chief Rabbi Goren to Sweden, this approach was changed, and stunning is
no longer accepted.
See Golan, supra n. 60, at 23; see also supra n. 217 and accompanying text.
On the other hand, it
is possible that in the future halakhic authorities will explore other ways
to adjust halakhic
requirements to the demands of animal protectionists for stunning.
252. On this point it is possible to find the agreement of authors like
Barry who do not agree
with multiculturalism. See Barry, Culture and Equality, supra n. 105, at 43.
253. In Switzerland, the importing of kosher meat is not regulated although
there is de facto
permission. Until now, the voices calling to forbid the importing of kosher
or halal meat have not
succeeded in changing the status quo. See Golan, supra n. 60, at 15.
254. Michael Mc Connell McConnell & Richard A. Posner, An Economic Approach
to Issues
of Religious Freedom, 56 U. Chi. L. Rev. 1, 56-60 (1989) (discussing the
relationship between
religious freedom and economics).
255. See Golan, supra n. 60, at 23.
256. Hence, a unique aspect of shechita with regard to the freedom of
occupation is that a
shochet (person performing slaughter) cannot slaughter by other methods at
odds with the
Halakhah, and therefore he may not work in “secular” slaughtering.
257. Act 1980-6-20, § 2.
258. In any case, the slaughtering of cows in Israel is carried out on a
very small scale because
most of the beef is imported, but it is only permissible to import kosher
beef. As far as we know,
most of the non-kosher meat sold in Israel is pork, although non-kosher beef
is also sold after
slaughtering, if declared as non-kosher. As a matter of fact, it is
difficult to get beef of cows
slaughtered after stunning. Although we have not done an exhaustive research
on the point it
seems that those who are selling it (butchers, restaurants) are not aware of
this point.
259. This is not an imaginary scenario. There have been attempts in this
direction in the past.
See Proposed Prevention of Cruelty to Animals Act (protection of animals)
(amendment stunning
before slaughter) 5764-2004 § a. “Animals must not be slaughtered unless
first stunned so as to
reduce the suffering caused at the time of slaughter; b. The Minister of
Agriculture will specify the
exact method of stunning.” A similar bill was proposed in 2000. The former
M.K.A. Poraz
(Shinui Party) said: “the purpose of this proposal is to prevent unnecessary
suffering from animals
caused by the traditional method of slaughter. The slaughtering of animals
will be prohibited
unless previously stunned by electric shock preventing suffering.” (From the
internet site of
Shinui for the 15th Knesset.) This position is opposed to the scientific
conclusion of the study by
Dr. Levinger. See Levinger, Schechita in the Light of the Year 2000, supra
n. 212.
In reaction to a late stunning proposal of M.K. Shalgi (Shinui Party) in the
16th Knesset,
the Chief Rabbi of Israel Shlomo Amar declared his opposition to the
proposal since stunning
before Shechita is forbidden according to Halacha. Ma’ariv (May 6, 2004),
www.maariv.co.il/online/11/ART/705/268.html (accessed Feb. 19, 2007).
260. Kook, Hazon ha-tsimhonut veha-shalom, supra n. 210, at 20.